Russo v. Payroll Services LLC

Filing 23

MEMORANDUM OPINION and ORDER that the 8 MOTION to Dismiss is DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/15/2015. (AHI)

FILED
2015 May-15 PM 02:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
SUMMER RUSSO,
Plaintiff,
vs.
PAYROLL SERVICES, LLC,
Defendant.

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Civil Action No. 5:14-cv-02302-CLS

MEMORANDUM OPINION AND ORDER
This matter is before the court on the motion to dismiss filed by defendant,
Payroll Services, LLC.1 Defendant seeks dismissal of Count III of plaintiff’s
complaint, “Post-Employment Retaliation in Violation of Title VII,” pursuant to
Federal Rule of Civil Procedure 12(b)(6).2 Upon consideration of the pleadings and
briefs, this court concludes that the motion should be denied.
I. LEGAL STANDARDS GOVERNING MOTIONS TO DISMISS
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a
claim for, among other reasons, “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). This 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
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Doc. no. 8 (Motion to Dismiss).

2

See doc. no. 1 (Complaint), at 11.

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, thedefendant-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
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.
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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 (alterations in citations and emphasis supplied).
II. DISCUSSION
In her complaint, plaintiff alleges the following facts in support of her postemployment retaliation claim:
After Plaintiff received her notice of right-to-sue from the EEOC
[Equal Employment Opportunity Commission], she began receiving
harassing texts, e-mails[,] and Facebook messages from Defendant’s
Assistant Manager, Amanda Martin, stating things like “did you actually
think you would win?” and “good girls get married and bad girls get
what you got.” Additionally, Amanda Martin began making false
statements about Plaintiff to several of their mutual acquaintances,
including telling others Plaintiff was under an ongoing investigation by
[the Department of Human Services] and was going to have her children
taken away from her[,] and that they should not let their children play
with Plaintiff’s children[. Amanda Martin told] others that Plaintiff
worked [for defendant] only to try and make money from [defendant]
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and to take over the business.
Doc. no. 1 (Complaint) ¶ 38 (alterations supplied).
Defendant contends that those allegations “are too vague and conclusory to
meet the Twombly/Iqbal pleading standards.”3 Specifically, defendant contends that
plaintiff failed to plead “when the alleged statements were made, the substance of the
alleged statements, or with respect to statements made to third parties, to whom the
statements were made.”4 Defendant further contends that plaintiff “pleads no facts
that show any causal connection between the alleged negative statements and the
Plaintiff’s EEOC” charge.5
This court concludes that plaintiff has pleaded facts that plausibly could
support her post-employment retaliation claim. Defendant’s contention that plaintiff
must allege the exact dates of the communications at issue, as well as the identities
of the third-party recipients of such communications, in order to meet the standards
set forth in Twombly and Iqbal, is without merit. Plaintiff has pleaded sufficient facts
in support of her post-employment retaliation claim that, taken as true, could entitle
her to relief.
Defendant next contends that plaintiff’s post-employment retaliation claim

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Doc. no. 8 (Motion to Dismiss) ¶ 5.

4

Id.

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Id.
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should be dismissed because plaintiff failed to exhaust her administrative remedies
with regard to that claim.6 According to plaintiff’s complaint, the facts supporting her
post-employment retaliation claim arose after the EEOC already had dismissed her
charge of discrimination.7 Plaintiff has not alleged that she filed a new charge of
discrimination regarding the alleged post-employment retaliation.
Ordinarily, “[a] 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.” Alexander v. Fulton County, Ga., 207 F.3d 1303, 1332 (11th Cir.
2000) (internal quotation marks omitted, alteration supplied), overruled on other
grounds by Manders v. Lee, 338 F.3d 1304, 1328 n.52 (11th Cir. 2003) (en banc).
Even so, this Circuit has carved out an exception to that rule for retaliation claims.
As the former Fifth Circuit held in Gupta v. East Texas State University, 654 F.2d
411 (5th Cir. Unit A Aug. 1981), “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.”8 Id. at 414; see also
Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988) (same). The
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Id. ¶ 6.

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Doc. no. 1 (Complaint) ¶ 54.

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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.
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court in Gupta explained:
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.
Gupta, 654 F.2d 414.
Plaintiff alleges that her post-employment retaliation claim grew out of her
earlier EEOC charge.9 Further, defendant has failed to show that the earlier EEOC
charge is not properly before this court. Thus, this court finds that it has ancillary
jurisdiction over Count III of plaintiff’s complaint, and that, accordingly, defendant’s
motion to dismiss is due to be denied.
Before closing this opinion, the court pauses to note that none of the principles
discussed above are new law, as evidenced by the age of the Gupta opinion cited
above. They should have been well-known to reasonably competent counsel.
Consequently, defendant’s attorney is placed on notice that this court will not tolerate
meritless pleadings. Sanctions will be imposed liberally if similar pleadings should
be filed in the future.
III. CONCLUSION AND ORDER
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Doc. no. 1 (Complaint) ¶ 56 (“Such communications and statements were made because
of Plaintiff’s protected activity in filing an EEOC charge for discrimination and retaliation.”).
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Accordingly, it is ORDERED that defendant’s motion to dismiss be, and the
same hereby is, DENIED.
DONE and ORDERED this 15th day of May, 2015.

______________________________
United States District Judge

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