Caetio et al v. Spirit Coach LLC

Filing 10

MEMORANDUM OPINION AND ORDER that the 6 MOTION to Dismiss is GRANTED in part and DENIED in part; Defendant must file an amswer to plaitniffs' complaint by 1/31/2014; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/17/2014. (AHI)

FILED
2014 Jan-17 PM 03:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JENNIFER CAETIO and
CECELIA THOMPSON,
Plaintiffs,
vs.
SPIRIT COACH, LLC,
Defendant.

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Civil Action No. CV-13-S-1634-NE

MEMORANDUM OPINION AND ORDERS
Plaintiffs, Jennifer Caetio and Cecelia Thompson, assert race and gender
discrimination and retaliation claims against their former employer, Spirit Coach,
LLC, pursuant to Title VII of the Civil Rights Act of 1964, as amended (“Title VII”),
42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981.1 Plaintiffs also assert a claim for
violations of the Equal Pay Act of 1963, 29 U.S.C. § 206.2 The case presently is
before the court on defendant’s motion to dismiss plaintiffs’ complaint, pursuant to
Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief
can be granted.3
I. STANDARD OF REVIEW
1

See doc. no. 1 (Complaint).

2

See id.

3

Doc. no. 6 (Motion to Dismiss).

Federal Rule of Civil Procedure 12(b)(6) permits a party to move to dismiss a
complaint for “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 that pleading standard
does not require “detailed factual allegations,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 550 (2007), it does demand “more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations omitted).
To 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.” [Bell Atlantic Corp., 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., 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).
Iqbal, 556 U.S. at 678 (alteration supplied).
As always is the case in the context of ruling upon a motion to dismiss, the
district court is required to assume that
the facts set forth in the plaintiff’s complaint are true. See Anza [v. Ideal
2

Steel Supply Corp.], 547 U.S. 451, [453,] 126 S. Ct. [1991,] 1994
[(2006)] (stating that on a motion to dismiss, the court must “accept as
true the factual allegations in the amended complaint”); Marsh v. Butler
County, 268 F.3d 1014, 1023 (11th Cir. 2001) (en banc) (setting forth
the facts in the case by “[a]ccepting all well-pleaded factual allegations
(with reasonable inferences drawn favorably to Plaintiffs) in the
complaint as true”).
Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006)
(alterations supplied). Even so,
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. [Bell Atlantic Corp., 550 U.S.] at 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (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)).
Iqbal, 556 U.S. at 678 (alteration supplied).
II. ALLEGATIONS OF PLAINTIFFS’ COMPLAINT
A.

Plaintiffs’ Employment with Defendant
Plaintiff, Jennifer Caetio (“Caetio”), who held a commercial driver’s license

(“CDL”), was employed as a tour bus driver at defendant’s location in Madison,
Alabama on January 11, 2009.4 Approximately one year later, on February 11, 2010,

4

See doc. no. 1 (Complaint) ¶ 7.

3

plaintiff, Cecelia Thompson (“Thompson”), was also hired as a CDL tour bus driver.5
B.

Plaintiffs’ Meetings with Robert Coates and Jamie Wilson
Plaintiffs allege that, during their employment with defendant, white, male

drivers, holding their same positions, were assigned the more lucrative driving
assignments — those requiring more work hours and, therefore, paying a greater
amount to the driver.6 Because of this alleged disparate treatment, plaintiffs met with
Robert “Clip” Coates, the CEO and their supervisor, on January 24, 2011, to voice
those complaints.7 Buck Clemons, one of plaintiffs’ co-workers, was also present at
that meeting.8
The next day, plaintiffs met with Safety Manager, Jamie Wilson, to discuss the
issues presented during their prior meeting with Coates.9 Plaintiffs allege that Wilson
was angry that they had met with Coates, and that, in retaliation, he issued a written
reprimand concerning accidents that had occurred months before, and placed them
on probation.10 Plaintiffs contend that, at that time, defendant did not have a written
policy governing accidents or discipline, and that this was the first disciplinary action
5

See id. ¶ 8; see also doc. no. 6-1 (April 12, 2011 EEOC Charge of Discrimination filed by
Cecelia Thompson).
6

See doc. no. 1 (Complaint) ¶ 10.

7

See id. ¶ 11.

8

See id. ¶¶ 11-12.

9

See id. ¶ 13.

10

See id. ¶¶ 15-17.

4

defendant had taken against them.11 Further, plaintiffs allege that male co-workers
involved in similar accidents were not written up or placed on probation.
Caetio again complained of discrimination on January 26, 2011, when she
voiced her concerns over the fact that new jobs were created for former co-workers
of Safety Manager Wilson, that new male employees were assigned a greater number
of work hours, and that different requirements were demanded of plaintiffs than of
their new male co-workers.12 The complaint does not state to whom Caetio voiced
those complaints. Plaintiffs allege that, following their complaints, they “became the
target of threats and harassment” from Safety Manager Wilson.13
C.

Thompson’s Termination
There is conflicting evidence as to the date defendant terminated Cecelia

Thompson’s employment. The complaint states that “Thompson was wrongfully
terminated in January, 2012,”14 whereas Thompson’s second EEOC charge states that
“her employment was terminated on February 2, 2011 . . . .”15 In plaintiffs’ response
to the motion to dismiss, plaintiffs state that Thompson was terminated on February

11

See doc. no. 1 (Complaint) ¶¶ 18, 22.

12

See id. ¶ 23.

13

See id. ¶ 24.

14

See id. ¶ 50.

15

See doc. no. 6-2 (June 16, 2011 EEOC Charge of Discrimination filed by Cecelia
Thompson).

5

2, 2011.16 Thus, for purposes of the motion to dismiss, this court will assume
Thompson’s termination date was February 2, 2011.
D.

Thompson’s EEOC Charges
Thompson’s first EEOC charge was filed on April 12, 2011.17 The boxes

entitled “Sex” and “Other” were checked, but the boxes for “Race” and “Retaliation”
were not.18 In that charge of discrimination, Thompson stated as follows:
I was hired by the above named employer on February 11, 2010
in the position of Driver. Since October 2010, there has been an
ongoing issue concerning the job assignment of male drivers being
assigned the most lucrative assignments, receiving more work hours,
and disparate treatment in requirements in job performance, in lieu of
female drivers. During a meeting that was held on January 24, 2011, I
complained About [sic] the above mentioned issues to the CEO, Robert
Coates. In retaliation for my complaining, I became the target of threats
and harassment from the Safety Manager, Jamie Wilson.
No reason was given to me for the disparate treatment that I was
receiving. I have twenty-two years experience as a driver.
I believe I am being discriminated against because of my sex,
Female, in violation of Title VII of the 1964, Civil Rights Act,
amended.19

16

See doc. no. 8 (Response to Motion to Dismiss), at 14.

17

See doc. no. 6-1 (April 12, 2011 EEOC Charge of Discrimination filed by Ceclia
Thompson).
18

See id.

19

See id.

6

Thompson filed a subsequent EEOC charge on June 16, 2011.20 In this charge,
only the box for “Retaliation” was checked.21 That second charge of discrimination
read as follows:
I filed a complaint with the EEOC via letter dated January 28,
2011 because of retaliation I received after a meeting on January 24,
2011, wherein I complained of disparate treatment as it related to issues
of job assignment, wage, work hours, and job requirement[s] between
male and female drivers to the CEO of the company, Mr. Robert Coates.
After my discussion with Mr. Coates, I was called into a meeting with
Jamie Wilson, Safety Manager, where I was informed that he was
instituting a new policy about having accidents on the buses. I was
given a written warning for an accident I had over a year ago and told
that I would be terminated if I had an accident during 2011. None of the
males who had accidents were given warnings nor were they threatened
with termination. My employment was terminated on February 2, 2011,
by Jamie Wilson.
I was informed by Jamie Wilson that the decision to terminate my
employment was made by the Safety Committee.
I believe I have been discriminated against in retaliation for filing
a previous charge with the EEOC and in retaliation for complaining of
disparate treatment between male and female drivers, I believe the
conduct of my employer has violated my rights under Section 704(a) of
Title VII of the 1964, Civil Rights Act, as amended.22
E.

Caetio’s Allegations of Discrimination
Unlike Thompson, Caetio only filed a single charge of discrimination with the
20

See doc. no. 6-2 (June 16, 2011 EEOC Charge of Discrimination filed by Cecelia
Thompson).
21

See id.

22

See id. (alteration supplied).

7

EEOC on April 15, 2011.23 In her charge, Caetio checked the boxes for “Retaliation”
and “Sex” but not the box for “Race.”24 In her charge of discrimination, Caetio stated
as follows:
I was hired by the above named employer on January 11, 2009, in
the position of Driver. Since October 2010, there had been an ongoing
issue concerning the job assignment of male drivers being assigned the
most lucrative assignments, receiving more work hours, and disparate
treatment in requirements in job performance, in lieu of female drivers.
During a meeting that was held on January 24, 2011, I complained about
the above mentioned issues to the CEO, Robert Coates. After my
complaint, I became the target of threats and harassment from the Safety
Manager, Jamie Wilson. On January 25, 2011, I was retaliated against
by being called into a meeting and given a written warning by Jamie
Wilson, and placed on 6-months probation.
I was told that I was being written up for accidents when the
company does not have anything in writing concerning accidents. Males
who have actually had accidents have not been written up nor placed on
probation. I have eighteen years experience as a [d]river and believe the
discipline was unwarranted.
I believe I am being discriminated against because of my sex,
Female, in violation of Title VII of the 1964, Civil Rights Act, as
amended.25
In the complaint filed in this court, Caetio alleges that she was subjected to
continuing discrimination.26 Specifically, Caetio contends that, on February 28, 2011,
23

See doc. no. 6-3 (April 15, 2011 EEOC Charge of Discrimination filed by Jennifer Caetio).

24

Id.

25

Id.

26

As discussed in Part III.A.3, infra, because Thompson was terminated on February 2, 2011,
any claims asserted on behalf of “Plaintiffs” in the complaint after that date, may only be asserted

8

Safety Manager Wilson told her that male drivers were given preference due to
“family responsibility,” and that, therefore, males would be given the first choice for
driving assignments.27

Caetio alleges that when she informed Coates of that

conversation, she was taken off of dispatch.28
Caetio also claims that she was not allowed to take her son — who had a
broken leg and could not stay at home alone — on a driving trip, following the April
27, 2011 storms that swept across the state, while a male driver’s spouse was allowed
to accompany him on a similar trip.29 After complaining about that incident, Caetio
asserts that she was removed from the roster.30
Further, Caetio contends that she repeatedly inquired about a particular sixtyday assignment which was eventually given to four new male drivers.31 Caetio claims
that in August of 2011, Kevin Gipson, a male co-worker, was allowed to work eight
hours in the office when not out on driving assignments so that he could still receive
a full paycheck.32

by Caetio.
27

See doc. no. 1 (Complaint) ¶ 25.

28

See id. ¶ 26.

29

See id. ¶¶ 28-30.

30

See id. ¶ 31.

31

See id. ¶¶ 27, 32. In her complaint, Caetio stated that she inquired about this particular
assignment on both April 14, 2011 and June 19, 2011. See id.
32

See doc. no. 1 (Complaint) ¶ 33.

9

Safety Manager Wilson held a meeting on September 19, 2011, in which he
stated that “if your bus is assigned for a trip, then you will do that trip,” however,
Caetio alleges that her bus was repeatedly assigned for trips but with different
drivers.33 Caetio also contends that other drivers were dispatched on trips shortly
after she had been informed on September 25, 2011 that there were no trips.34
Because Caetio was not receiving driving assignments, she alleges that, as of
November of 2011, she was forced to clean buses — a task that was less desirable
than driving, because it not only required physical labor, but also paid less than a
driving trip.35

Further, Caetio alleges that defendant hired new drivers from

November of 2011 through January of 2012, even though she was not receiving
driving assignments.36
Caetio alleges that on December 20, 2011, Kevin Gipson, a co-worker, sent a
text message to Carl, another co-worker, which stated that Caetio would no longer
receive hours at the shop.37 Further, Caetio contends that on January 16, 2012, Safety
Manager Wilson stated that Coates “did not want any blacks working in the shop

33

See id. ¶ 34.

34

See id. ¶ 35.

35

See id. ¶¶ 36-37.

36

See id. ¶ 38.

37

See doc. no. 1 (Complaint) ¶ 39.

10

because they were not happy with the last black employee they hired.”38 Shortly
thereafter, Wilson allegedly told Caetio on January 30, 2012, that to prevent her from
receiving hours he would assign those jobs to an outside source.39 The next day,
Gipson informed her that Wilson had asked that she be taken off of the schedule for
her regular trips.40
Caetio was informed on February 17, 2011, that her involvement in a
Williamsburg trip would be “voted on,” however, she alleges that the male driver
assigned to this trip was not similarly “voted on.”41 The Complaint does not state
who informed Caetio of this voting arrangement.
Caetio also contends that she worked on a week-long assignment to
Washington D.C. with a male co-worker who, she claims, kept the entire tip, save for
$5.00.42 Caetio alleges that she complained about this incident and was told that it
would be reviewed, but she was never compensated.43 Further, Caetio informed
management that male drivers were stealing her tips on three additional occasions,

38

See id. ¶ 40.

39

See id. ¶ 41.

40

See id. ¶ 42.

41

See id. ¶ 43.

42

See doc. no. 1 (Complaint) ¶¶ 44-45.

43

See id. ¶¶ 46-47.

11

but the matter was never pursued.44 Caetio admits, however, that in May of 2011,
defendant did attempt to correct a pay mistake.45
Throughout March of 2012, Caetio complained twice about the unfair driving
assignments.46 The complaint does not state to whom Caetio voiced those complaints.
Shortly thereafter, defendant needed parts from Nashville, Tennessee.47 Caetio
contends that she was willing to make this trip, however, Gipson, a co-worker, told
her that she was not allowed to do so.48 Following her conversation with Gipson,
Caetio alleges that she was threatened, and told that because she refused to drive to
Nashville, Tennessee for the parts, she would not be assigned a later trip to Panama
City, Florida.49 Caetio claims that she was subsequently taken off of the roster and
not assigned any trips throughout the remainder of March of 2012.50
Caetio complained again of harassment, and about how such harassment was
not properly addressed by defendant, in May of 2012.51

44

See id. ¶ 48.

45

See id. ¶ 49.

46

See id. ¶ 51.

47

See doc. no. 1 (Complaint) ¶ 52.

48

Id.

49

See id. ¶ 53.

50

See id. ¶ 54.

51

See id. ¶ 55.

12

Caetio claims that she was wrongfully terminated in August of 2012.52
III. DISCUSSION
Defendant argues in the motion to dismiss that plaintiffs’ complaint should be
dismissed for failure to exhaust administrative remedies for all of the race
discrimination claims, and for the gender discrimination claims arising after April 15,
2011, for failure to properly plead their gender discrimination claims arising before
April 15, 2011, for failure to exhaust administrative remedies for the retaliation
claims, and for failure to assert a cognizable claim under the Equal Pay Act.53 Upon
consideration, the motion to dismiss will be granted, but only in part.
If plaintiffs’ complaint refers to documents that are central to their claims, the
court may consider those documents as a part of the pleadings for purposes of a Rule
12(b)(6) dismissal. Brooks v. Blue Cross & Blue Shield, 116 F.3d 1364, 1369 (11th
Cir. 1997) (citing Venture Association Corp. v. Zenith Data Systems Corp., 987 F.2d
429, 431 (7th Cir. 1993)). Further, if defendant’s motion to dismiss attaches those
documents, the court need not convert that motion into a motion for summary
judgment. Id.
Here, plaintiffs’ complaint alleges that defendant retaliated against them,

52

See doc. no. 1 (Complaint) ¶ 56.

53

See doc. no. 6 (Motion to Dismiss).

13

because they objected to and reported acts of racial and gender discrimination.54 As
the EEOC charges are referenced in plaintiffs’ complaint and are central to their
claims, this court will consider those forms on defendant’s motion to dismiss without
converting the motion into a motion for summary judgment.
A.

Title VII Claims
Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an

employer “to discriminate against any individual with respect to his [or her]
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, or national origin.” 42 U.S.C. § 2000e-2(a)(1)
(alteration supplied).
A plaintiff must satisfy a number of administrative prerequisites before filing
a suit based upon Title VII. Foremost among these is the requirement that a charge
of discrimination be submitted to the Equal Employment Opportunity Commission
within 180 days “after the alleged unlawful employment practice occurred.” 42
U.S.C. § 2000e-5(e)(1); see also, e.g., Alexander v. Fulton County, 207 F.3d 1303,
1332 (11th Cir. 2000) (“No action alleging a violation of Title VII may be brought
unless the alleged discrimination has been made the subject of a timely-filed EEOC
charge.”); Stafford v. Muscogee County Board of Education, 688 F.2d 1383, 1387
54

See id. ¶ 78-79.

14

(11th Cir. 1982) (“In order to assert a claim of racial discrimination under Title VII,
a claimant must file a complaint with the EEOC within 180 days after the alleged
discriminatory practice occurred.”). “An individual must file a charge within the
statutory time period and serve notice upon the person against whom the charge is
made.” National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).
Failure to do so renders the claim time-barred. See, e.g., Delaware State College v.
Ricks, 449 U.S. 250, 256 (1980); Everett v. Cobb County School District, 138 F.3d
1407, 1410 (11th Cir. 1998); Beavers v. American Cast Iron Pipe Co., 975 F.2d 792,
796-97 (11th Cir. 1992).
Before a potential plaintiff may sue for discrimination under Title
VII, she must first exhaust her administrative remedies. See Crawford
v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999). The first step down
this path is filing a timely charge of discrimination with the EEOC. See
42 U.S.C. § 2000e-5(b) (1994); Alexander v. Fulton County, 207 F.3d
1303, 1332 (11th Cir. 2000). For a charge to be timely in a non-deferral
state such as Georgia [or Alabama], it must be filed within 180 days of
the last discriminatory act. See 42 U.S.C. § 2000e-5(e)(1) (1994);
Howlett v. Holiday Inns, Inc., 49 F.3d 189, 197 (6th Cir. 1995).
Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001) (alteration
supplied).
1.

Race discrimination

In Thompson’s first EEOC charge, dated April 12, 2011, she checked the boxes

15

for “Sex” and “Other,” but did not check the box for “Race.”55 Further, in discussing
the “Particulars” of her charge, Thompson did not mention race in any manner.56
Instead, she concluded with the following statement: “I believe I am being
discriminated against because of my sex, Female, in violation of Title VII of the 1964,
Civil Rights Act, as amended.”57 Likewise, her second EEOC charge, dated June 16,
2011, failed to mention race.58
Similarly, in Caetio’s EEOC charge, only the boxes for “Sex” and “Retaliation”
were checked.59 The face of the charge contained no reference to race discrimination
and, instead, concluded as follows: “I believe I am being discriminated against
because of my sex, Female, in violation of Title VII of the 1964, Civil Rights Act, as
amended.”60
Defendant therefore asserts that plaintiffs have failed to exhaust administrative
remedies for their race discrimination claims. In response, plaintiffs make no attempt
to salvage any race discrimination claims that might have been brought pursuant to

55

See doc. no. 6-1 (April 12, 2011 EEOC Charge of Discrimination filed by Cecelia
Thompson).
56

See id.

57

See id. (emphasis supplied).

58

See doc. no. 6-2 (June 16, 2011 EEOC Charge of Discrimination filed by Cecelia
Thompson).
59

See doc. no. 6-3 (April 15, 2011 EEOC Charge of Discrimination filed by Jennifer Caetio).

60

See id. (emphasis supplied).

16

Title VII of the Civil Rights Act of 1964. Rather, plaintiffs contend that their race
discrimination claims were asserted under 42 U.S.C. § 1981.

There are no

administrative prerequisites to the maintenance of a § 1981 claim. Neither the filing
of an EEOC charge of discrimination within 180 days of the alleged unlawful
employment practice as required by Title VII, see 42 U.S.C. § 2000e-5(e), nor “resort
to Title VII’s administrative machinery are . . . prerequisites for the institution of a
§ 1981 claim.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460 (1975).
Accordingly, defendant’s motion to dismiss is granted as to any race discrimination
claims that plaintiff may have asserted pursuant to Title VII of the Civil Rights Act
of 1964 for failure to exhaust administrative remedies, but it is denied as to any race
discrimination claims premised upon 42 U.S.C. § 1981.
2.

Gender discrimination

Defendant argues that plaintiffs did not exhaust administrative remedies for
their gender discrimination claims concerning allegedly discriminatory acts occurring
after April 15, 2011 — the date that Caetio filed her charge of discrimination with the
EEOC. Defendant also contends that plaintiffs did not allege sufficient facts to
support their gender discrimination claims for acts occurring before April 15, 2011.
Each of defendant’s claims will be analyzed below.
a.

Failure to exhaust administrative remedies
17

As the Eleventh Circuit noted in Basel v. Secretary of Defense, 507 Fed. App’x
873 (11th Cir. 2013):
The purpose of exhaustion is to permit the department the first
opportunity to investigate the alleged discriminatory or retaliatory
practices, and a plaintiff’s judicial complaint is thereby limited by the
scope of the investigation that can reasonably be expected to grow out
of the administrative charge of discrimination or retaliation. See
Gregory v. Georgia Dep’t of Human Res., 355 F.3d 1277, 1279-80 (11th
Cir. 2004). The proper inquiry is, therefore, whether the plaintiff’s
judicial complaint was like or related to, or grew out of, the
administrative allegations. See id. at 1280. Judicial claims are allowed
if they “amplify, clarify, or more clearly focus” the charges made before
the agency, and, given that we are reluctant to allow procedural
technicalities to bar Title VII claims, the scope of the administrative
charges should not be strictly construed. See id. at 1279-80 (quotation
omitted).
Id. at 875-76 (emphasis supplied); see also Danner v. Phillips Petroleum Co., 447
F.2d 159, 162 (5th Cir. 1971) (“[T]he complaint in the civil action may properly
encompass any discrimination like or reasonably related to the allegations [contained
in the EEOC] charge and growing out of such allegations.”) (alterations and emphasis
supplied, citations and internal quotation marks omitted);61 Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 465 (5th Cir. 1970) (“[T]he specific words of the charge
of discrimination need not presage with literary exactitude the judicial pleadings

61

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the
close of business on September 30, 1981.

18

which may follow.”) (alteration supplied); Cheek v. Western and Southern Life
Insurance Co., 31 F.3d 497, 500 (7th Cir. 1994) (“As a general rule, a Title VII
plaintiff cannot bring claims in a lawsuit that were not included in her EEOC charge
. . . . Nevertheless, because most EEOC charges are completed by laypersons rather
than by lawyers, a Title VII plaintiff need not allege in an EEOC charge each and
every fact that combines to form the basis of each claim in her complaint.”) (citations
omitted).
While a plaintiff’s complaint need not mirror her earlier EEOC charge,
“allegations of new acts of discrimination that are offered as the essential basis for
judicial review must nonetheless be presented to the agency.” Basel, 507 Fed. App’x
at 876 (citing Ray v. Freeman, 626 F.2d 439, 442-43 (5th Cir. 1980)). Therefore,
“[d]iscrete acts of discrimination that occur after an administrative filing must first
be administratively reviewed before a plaintiff may obtain judicial review of those
same acts.” Id. (citing Ray, 626 F.2d at 442-43) (alteration supplied). Termination,
failure to promote, denial of transfer, or refusal to hire are readily identifiable
examples of such discrete discriminatory acts. See National Railroad Passenger
Corp., 536 U.S. at 114; Basel, 507 Fed. App’x at 876.
Plaintiffs allege in their EEOC charges that there was “an ongoing issue
concerning the job assignment of male drivers being assigned the most lucrative
19

assignments, receiving more work hours, and disparate treatment in requirements in
job performance, in lieu of female drivers.”62 Plaintiffs further assert that in
retaliation for voicing those complaints, they “became the target of threats and
harassment from the Safety Manager, Jamie Wilson.”63 The additional allegations of
defendant’s discriminatory acts occurring after April 15, 2011 are like or related to
the allegations contained in those charges, because they “amplify, clarify, or more
clearly focus” the manner in which defendant distributed driving assignments,
defendant’s practice of giving male employees more work hours, defendant’s
maintenance of disparate requirements between male and female employees, and
plaintiffs’ continued subjection to threats and harassment by Wilson. See Gregory,
355 F.3d at 1280. Therefore, this court will deny the portion of defendant’s motion
to dismiss resting on that ground.64
b.

Failure to plead sufficient facts

Defendant also asserts that plaintiffs failed to allege sufficient facts for those
acts occurring prior to April 15, 2011.
62

See doc. no. 6-1 (April 12, 2011 EEOC Charge of Discrimination filed by Cecelia
Thompson); doc. no. 6-3 (April 15, 2011 EEOC Charge of Discrimination filed by Jennifer Caetio).
63

See doc. no. 6-1 (April 12, 2011 EEOC Charge of Discrimination filed by Cecelia
Thompson); doc. no. 6-3 (April 15, 2011 EEOC Charge of Discrimination filed by Jennifer Caetio).
64

As discussed in Part III.A.3, infra, because Thompson was terminated on February 2, 2011,
any gender discrimination claims asserted on behalf of “Plaintiffs” in the complaint after that date,
may only be asserted by Caetio.

20

The Supreme Court has held that the elements of a McDonnell Douglas prima
facie case constitute “an evidentiary standard” for evaluating the sufficiency of a
plaintiff’s circumstantial proof of discrimination, “not a pleading requirement.”
Swierkiewicz v. Sorema, 534 U.S. 506, 510 (2002). In other words, Federal Rule of
Civil Procedure 8(a) requires only a short and plain statement of the plaintiff’s claim,
sufficient to give the defendant fair notice of what the plaintiff’s claim is, and, the
grounds upon which it rests, and it does not require the plaintiff to plead a prima facie
case of discrimination in order to survive a defendant’s motion to dismiss.
Since Caetio’s claims of discriminatory acts taking place after April 15, 2011
are not due to be dismissed, those allegations may also be considered in determining
whether plaintiffs pled sufficient facts to survive a motion to dismiss. Even so,
plaintiffs’ complaint contains sufficient factual allegations occurring prior to April
15, 2011, to place defendant on fair notice of their claims for gender discrimination.
As plaintiffs point out, they not only complain that similarly situated white, male
drivers were assigned the more lucrative assignments — those assignments with more
hours and therefore more pay — but also that, after voicing those complaints,
plaintiffs were given a written reprimand and placed on probation, whereas males had
not been reprimanded under similar circumstances. Further, plaintiffs assert that
supervisors were providing males with a right of first refusal on the lucrative driving
21

assignments, so that they could in turn satisfy their “family responsibility.”
Therefore, plaintiffs have presented facts sufficient to state a claim for gender
discrimination. Accordingly, those claims will not be dismissed for failure to state a
claim upon which relief can be granted.
3.

Retaliation
a.

Gender-based retaliation claims
i.

Thompson’s retaliation claim

As defendant points out in its motion to dismiss, the complaint made
allegations on behalf of both plaintiffs when such claims could not apply to
Thompson because her employment with defendant had already ceased. In response,
plaintiffs agree that defendant terminated Thompson’s employment on February 2,
2011; and, therefore, that “all of the events of retaliation that Cecelia Thompson
complains she suffered occurred prior to April 15, 2011 . . . .”65 Accordingly, the
court concludes that, to the extent the complaint asserted any claims of retaliation on
behalf of Thompson (by using the generic term “Plaintiffs”) occurring after February
2, 2011, those claims are dismissed.
ii.

Caetio’s retaliation claim

Defendant argues that any retaliation claims arising after April 15, 2011 — the
65

See doc. no. 8 (Response to Motion to Dismiss), at 14.

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date Caetio filed her charge with the EEOC — are barred for failure to exhaust
administrative remedies.66
As the court has repeatedly noted throughout this opinion, a plaintiff cannot
maintain an action for Title VII discrimination without timely filing an EEOC charge,
and, therefore, her complaint “is limited by the scope of the EEOC investigation
which can reasonably be expected to grow out of the charge.” See Alexander, 207
F.3d at 1332; see also Gregory, 355 F.3d at 1279-80.
Even so, “a claim of retaliation could reasonably be expected to grow out of
the original charge of discrimination.” Baker v. Buckeye Cellulose Corp., 856 F.2d
167, 169 (11th Cir. 1988) (emphasis supplied); accord Thomas v. Miami Dade Public
Health Trust, 369 Fed. App’x 19, 23 (11th Cir. 2010). As a result,
it is unnecessary for a plaintiff to exhaust administrative remedies prior
to urging a retaliation claim growing out of an earlier charge; the district
court has ancillary jurisdiction to hear such a claim when it grows out
of an administrative charge that is properly before the court.
There are strong practical reasons and policy justifications for this
conclusion. It is the nature of retaliation claims that they arise after the
filing of the EEOC charge. Requiring prior resort to the EEOC would
mean that two charges would have to be filed in a retaliation case — a
double filing that would serve no purpose except to create additional
procedural technicalities when a single filing would comply with the
intent of Title VII.

66

See doc. no. 6 (Motion to Dismiss), at 10.

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Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir. 1981) (citing
National Organization for Women v. Sperry Rand Corp., 457 F. Supp. 1338, 1344 (D.
Conn. 1978); Held v. Missouri Pacific Railroad Co., 373 F. Supp. 996, 1001 (S.D.
Tex. 1974)).
Because Caetio alleges that defendant retaliated against her for reporting acts
of discrimination to her supervisors, and for filing an EEOC discrimination charge,
her retaliation claim “grew out of” that charge. Thus, Caetio was under no obligation
to file a separate EEOC charge in order to maintain a retaliation action in compliance
with Title VII.
b.

Race-based retaliation claims

Defendant asserts that plaintiffs failed to exhaust administrative remedies for
any claim of race discrimination, including retaliation, because, as discussed in Part
III.A.1, supra, plaintiffs’ EEOC charges only alleged gender discrimination and
retaliation arising from those complaints. In response, plaintiffs contend that their
race-based retaliation claims were asserted pursuant to 42 U.S.C. § 1981, not Title
VII of the Civil Rights Act. As noted previously, a plaintiff is not required to exhaust
administrative remedies before filing a § 1981 action in federal court. See Johnson,
421 U.S. at 460. Further, like Title VII, § 1981 applies to retaliation actions. CBOCS
West, Inc. v. Humphries, 553 U.S. 442, 454 (2008).
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Accordingly, defendant’s motion to dismiss is granted as to any race-based
retaliation claims that might have been asserted pursuant to Title VII of the Civil
Rights Act, but it is denied as to plaintiff’s race-based retaliation claims brought
pursuant to § 1981.67
B.

Equal Pay Act Claims
The Equal Pay Act was enacted in 1963, and made part of the Fair Labor

Standards Act of 1938, 29 U.S.C. § 201 et seq., under which it has been administered
and enforced. The text of the statute provides, in part, that:
No employer having employees subject to any provisions of this
section shall discriminate, within any establishment in which such
employees are employed, between employees on the basis of sex by
paying wages to employees in such establishment at a rate less than the
rate at which he pays wages to employees of the opposite sex in such
establishment for equal work on jobs the performance of which requires
equal skill, effort, and responsibility, and which are performed under
similar working conditions, except where such payment is made
pursuant to (i) a seniority system; (ii) a merit system; (iii) a system
which measures earnings by quantity or quality of production; or (iv) a
differential based on any other factor other than sex: . . . .
29 U.S.C. § 206(d)(1) (emphasis supplied). The Supreme Court has stated that “[t]he
Equal Pay Act is broadly remedial, and it should be construed and applied so as to
fulfill the underlying purposes which Congress sought to achieve.” Corning Glass
67

As noted in Part III.A.3.a.i, supra, Thompson’s allegations of retaliation occurred prior to
her termination on February 2, 2011. Therefore, to the extent the complaint asserted race-based
retaliation claims on her behalf after that termination date, those claims are dismissed.

25

Works v. Brennan, 417 U.S. 188, 208 (1974) (alteration supplied). Even so, as the
Fifth Circuit has observed, the focus of the Fair Labor Standards Act (“FLSA”), of
which the Equal Pay Act is but a part, “is on wages — minimum hourly rates and
overtime pay — and not on working conditions or assignments.” Berry v. Board of
Supervisors, 715 F.2d 971, 976 (5th Cir. 1983) (emphasis in original) (citing 29
U.S.C. §§ 206-207) (footnote omitted).
In their complaint, plaintiffs allege that “defendant company knowingly,
intentionally and willfully violated the EPA . . . by refusing to book female employees
on more lucrative trips, which resulted in more hours and wages,” and by “allow[ing]
male employees to steal the entire commissions from the female employees
significantly reducing the amount the female drivers received.”68
Plaintiffs have not asserted any facts alleging that they were paid “at a rate less
than the rate at which . . . employees of the opposite sex” were paid. See 29 U.S.C.
§ 206(d)(1). Instead, plaintiffs’ first claim concerns the manner in which the longer,
more lucrative driving trips were assigned. As the Fifth Circuit noted in Berry, the
Equal Pay Act does not provide relief for allegations of discriminatory work
assignments. Thus, that claim is due to be dismissed.
Further, plaintiffs’ allegation that male employees kept more than their share
68

See doc. no. 1 (Complaint) ¶ 88 (alteration supplied).

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of the commissions received during particular trips is not a cognizable claim under
the Equal Pay Act, because such claim does not assert that defendant paid unequal
wages to its employees. Accordingly, this court finds that this claim must also be
dismissed.
IV. CONCLUSION
Based on the foregoing, defendant’s motion to dismiss is GRANTED in part
and DENIED in part. The motion is GRANTED as to any claims plaintiffs may have
asserted for race discrimination or race-based retaliation pursuant to Title VII of the
Civil Rights Act, any retaliation claims asserted by Thompson which concern events
that took place after the date her employment was terminated, and plaintiffs’ claims
asserted pursuant to the Equal Pay Act. It is ORDERED that those claims be, and the
same hereby are, DISMISSED. The motion is DENIED as to plaintiffs’ claims for
race discrimination asserted pursuant to 42 U.S.C. § 1981, plaintiffs’ claims for
gender discrimination, Caetio’s claims for gender-based retaliation, and plaintiffs’
claims for race-based retaliation asserted pursuant to § 1981.
Defendant must file an answer to plaintiffs’ complaint on or before January 31,
2014.
DONE and ORDERED this 17th day of January, 2014.

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______________________________
United States District Judge

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