GREEN v. SAVAGE OF GEORGIA LLC

Filing 8

ORDER granting 4 Motion for Extension of Time to Answer ; granting 5 Motion to Dismiss Complaint. Ordered by US DISTRICT JUDGE LESLIE J ABRAMS on 8/27/2015. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
T.W. GREEN, SR.,
Plaintiff,
v.
SAVAGE OF GEORGIA, LLC.,
Defendant.

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CASE NO.: 1:14-CV-132 (LJA)

ORDER
Before the Court are Defendant Savage of Georgia, LLC.’s Motion for Extension of
Time to File Answer, (Doc. 4), Motion to Dismiss (Doc. 5), and Plaintiff T.W. Green’s
Motion, in the alternative, for Leave to Amend his Complaint (Doc. 6 at 4, 6). For the
reasons that follow, Defendant’s Motion for Extension of Time to File Answer is hereby
GRANTED, the Motion to Dismiss is GRANTED, and Plaintiff’s Motion for Leave to
Amend is DENIED.
BACKGROUND
Plaintiff T.W. Green is a fifty-six-year-old African American male who was employed
by Defendant as a spray painter from April 22, 2013, until he was terminated on September
11, 2013. (Doc. 1 at 2). Throughout his employment with Defendant, Plaintiff contends that
“[he] and other African American workers were subjected to disparate treatment, different
terms and conditions of employment, and held to a different standard than comparable
younger white employees.” (Id.) Specifically, Plaintiff alleges that the “mistreatment came at
the hands of” his supervisor, a white male. (Id.) Plaintiff avers that “at least four African
American employees were fired or quit due to the disparate treatment.” (Id.)
In August 2013, Defendant began interviewing potential candidates for a spray
painter position. Plaintiff alleges that he was informed that Defendant was hiring an
additional painter “to help Plaintiff,” and he was “told that he was not being replaced.” (Id.)

Despite these assurances, Plaintiff alleges that he was terminated and replaced by a white
painter. Id. Plaintiff contends that “approximately six to eight black painters applied” for the
position, although the position was ultimately offered to a white painter. Id. For reasons not
specified in the complaint, that painter ended his employment three days after being hired.
Id. On September 11, 2013, Plaintiff alleges that he was terminated “for a contrived reason”
and allegedly replaced by “a younger, white male.” Id. Plaintiff does not specify the exact
basis upon which he was terminated or explain how it was contrived.
On September 2, 2014, Plaintiff filed a complaint in the above-captioned matter,
alleging that he was discriminated against because of his race and age in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”); 42 U.S.C. § 1981
(“Section 1981” or “§ 1981”); and the Age Discrimination in Employment Act, 29 U.S.C.
§ 621, et seq. (the “ADEA”). On December 29, 2014, Defendant moved for an extension of
time to respond to the complaint, to which Plaintiff consented. (Doc. 4 at 2). In accordance
with that motion, Defendant timely moved to dismiss the complaint pursuant to Federal
Rule 12(b)(6) on January 6, 2015. (Doc. 5).
Defendant moves to dismiss Plaintiff’s race and age discrimination claims on the
grounds that Plaintiff has failed to allege sufficient facts to support his claims. Defendant
contends that Plaintiff’s complaint contains only conclusory statements and a recitation of
the elements, which are insufficient to support the race and age discrimination claims.
Further, Defendant contends that Plaintiff has failed to establish an essential element of
both claims—that Defendant is an “employer” under Title VII or the ADEA. Plaintiff has
moved in the alternative for the Court to grant him leave to file an amended complaint.
(Doc. 6 at 4, 6).
DISCUSSION
I.

Legal Standard

Federal Rule of Civil Procedure 12(b)(6) allows a party to assert the defense of failure
to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a
motion to dismiss under Rule 12(b)(6), the complaint must plead enough facts to state a
claim for relief that is plausible—not just conceivable—on its face. Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 570 (2007). Restated, “the factual allegations in the complaint must possess
enough heft to set forth a plausible entitlement to relief.” Edwards v. Prime, Inc., 602 F.3d
1276, 1291 (internal citation and punctuation omitted).
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.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While notice pleading is a liberal standard, “it does not unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79.
A “plaintiff’s obligations to provide the grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Moreover, when
evaluating the sufficiency of a complaint, the Court must “make reasonable inferences in
plaintiff’s favor;” however, the Court is “not required to draw plaintiff’s inference[s].”
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (quoting Aldana v. Del Monte
Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005)), abrogated on other grounds
by Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012).
II.

Analysis

A. Employee-numerosity requirement
As discussed in detail below, Plaintiff’s complaint is insufficient on its face. Plaintiff
has failed to allege sufficient facts to support several essential elements of his claims. As
such, his claims must fail.
First, Plaintiff failed to plead facts that establish that Defendant is an “employer”
under Title VII or the ADEA. 1 Title VII defines an employer as a “person engaged in an
industry affecting commerce who has fifteen or more employees for each working day in
each of twenty or more calendar weeks in the current or preceding calendar year . . . .” 42
U.S.C. § 2000e(b). Similarly, the ADEA defines an employer as “a person engaged in an
industry affecting commerce who has twenty or more employees for each working day in
each of twenty or more calendar weeks in the current or preceding calendar year . . . .” 29
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The Court notes that Section 1981 does not have an employee-numerosity requirement. See 42 U.S.C. § 1981.
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U.S.C. § 630(b). “The only notable difference between the two statutes’ definitions of
‘employer’ is the number of ‘employees’ each statute requires. Title VII requires fifteen or
more employees, while ADEA requires twenty or more.” Garcia v. Copenhaver, Bell &
Associates, M.D.’s, P.A., 104 F.3d 1256, 1264 (11th Cir. 1997). The Supreme Court has held
that “the threshold number of employees for application of Title VII is an element of a
plaintiff’s claim for relief, not a jurisdictional issue.” Arbaugh v. Y&H Corp., 546 U.S. 500,
516 (2006); see also Faulkner v. Woods Transp., Inc., 174 F. App’x 525, 528 (11th Cir. 2006)
(“Title VII’s employee-numerosity requirement is an element of the plaintiff’s claim.”).
Likewise, the Eleventh Circuit has held that “whether or not the defendant is an ‘employer’
is an element of an ADEA claim.” Garcia, 104 F.3d at 1267.
Plaintiff argues that he is not required to specifically allege that Defendant qualifies as
an employer under either Title VII or the ADEA. As noted above, however, the employeenumerosity requirement is a necessary element of a plaintiff’s claim under Title VII and the
ADEA. See Arbaugh, 546 U.S. at 516; Garcia, 104 F.3d at 1267. Because the employeenumerosity requirement is a necessary element of Plaintiff’s claims under Title VII and the
ADEA and because Plaintiff failed to plead that Defendant has the requisite number of
employees to qualify as an employer under the above-referenced statutes, Plaintiff’s claims
under the Title VII and the ADEA fail as a matter of law.
B. Title VII and Section 1981
Title VII prohibits an employer from “discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
Likewise, Section 1981 provides that “all persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make and enforce contracts, to sue,
be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a)
“The analysis of a disparate treatment claim is the same whether that claim is brought under
Title VII, § 1981, or § 1983.” Hopkins v. Saint Lucie Cnty. Sch. Bd., 399 F. App’x 563, 565 (11th

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Cir. 2010) (citing Rice-Lamar v. City of Ft. Lauderdale, Fla., 232 F.3d 836, 844 n. 11 (11th Cir.
2000)).
To state a claim for race discrimination, “a complaint need only provide enough
factual matter (taken as true) to suggest intentional discrimination.” Surtain v. Hamlin Terrace
Found., 789 F.3d 1239, 1256 (11th Cir. 2015). To sustain a claim of race discrimination, a
plaintiff must show that: (1) he is a member of a protected class; (2) he was subject to an
adverse employment action; (3) his employer treated similarly situated employees outside of
his protected class more favorably than he was treated; and (4) he was qualified for the job.
Surtain, at 1244 n. 3; see also Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir.
2006).
Plaintiff has alleged sufficient facts to establish that he is a member of protected class,
that he was subject to an adverse employment action, and that he was, arguably, qualified for
the job. 2 However, Plaintiff has failed to allege sufficient facts to establish that he was
treated differently than similarly situated individuals who were outside his protected class.
Throughout the complaint, Plaintiff alleges that “[he] has been the victim of discrimination
on the basis of race in that he was treated differently than similarly situated white employees
of Defendant.” (Doc. 1 at 3). Plaintiff fails to allege any facts to support this conclusory
allegation. Plaintiff fails to explain what specific disparate treatment he experienced. Nor
does he give any examples of the disparate treatment he allegedly witnessed. Rather, he
merely alleges that “he experienced and witnessed disparate treatment of African Americans
by Defendant and[,] at least[,] four African Americans employees were fired or quit due to
the disparate treatment.” (Doc. 1 at 2). These allegations are at best “me too” evidence to
support a pattern and practice claim. See Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 128586 (11th Cir. 2008). Such a claim would fail as well because Plaintiff has failed to allege
specific facts connecting the prior acts of alleged discrimination against African Americans
to his current claim for race discrimination. See Denney v. City of Albany, 247 F.3d 1172, 1189

Arguably, Plaintiff was qualified for the job given that he was hired and employed for approximately six months. That
Plaintiff was fired could indicate that he was found not to be qualified, but for purposes of this Motion, Plaintiff has
alleged sufficient facts to support this element.

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(11th Cir. 2001) (“[C]ourts are reluctant to consider ‘prior bad acts’ in this [employment
discrimination] context where those acts do not relate directly to the plaintiffs.”).
Furthermore, Plaintiff’s allegation that he was fired “for a contrived reason” fails to
provide a sufficient factual basis to conclude that his termination was based on his race.
Critically, Plaintiff failed to explain how the termination was “contrived” or motivated by
racial animus. As the Eleventh Circuit noted in Alvarez v. Royal Atl Developers, Inc., 610 F.3d
1253, 1265 (11th Cir. 2010), the Court’s “sole concern is whether [an] unlawful
discriminatory animus motivated the decision.” As such, Plaintiff has failed to allege
sufficient facts to support the claim that he was treated differently than similarly situated
non-black employees and that Defendant intentionally discriminated against him.
Accordingly, Plaintiff has failed to state a claim for race discrimination under either Title VII
or Section 1981.
C. The ADEA
The ADEA prohibits employers from discriminating against an employee on the
basis of age. See 29 U.S.C. §§623(a)(1). The ADEA applies to “individuals [who are] at least
40 years of age.” 29 U.S.C. § 631(a). Similar to a Title VII claim, a plaintiff can establish an
inference of intentional age discrimination by pleading that: (1) he is a member of a
protected age group; (2) he was subjected to an adverse employment action; (3) he was
qualified to do the job; and (4) he was replaced by a younger individual. See Chapman v. Al
Transport, 229 F.3d 1012, 1024 (11th Cir. 2000). Critically, the plaintiff must prove that age
was the “but-for” cause of the adverse employment decision. See Sims v. MVM, Inc., 704 F.3d
1327, 1332 (11th Cir. 2013).
Plaintiff contends that “[he] has been the victim of discrimination on the basis of his
age in that he was treated differently than similarly situated younger employees of Defendant
and has been subject to hostility and poor treatment on the basis, at least in part, of his age.”
(Doc. 1 at 4). According to Plaintiff, he was replaced by a “younger” male. Id. at 2. Like
Plaintiff’s allegations of race discrimination, these allegations are insufficient to support a
disparate treatment claim under the ADEA.

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Plaintiff has pled sufficient facts to allege that he is a member of a protected age
group, that he was subject to an adverse employment action, and that he, arguably, was
qualified for the job. Plaintiff, however, has failed to allege facts supporting his claim that he
was replaced by a younger person or that age was the but-for cause of his termination.
Plaintiff failed to identify any younger employees who were similarly situated and treated
more favorably than him. That Plaintiff subjectively believes that he was treated differently
than similarly situated employees is insufficient to support an inference of disparate
treatment. See Caraway v. Sec’y, U.S. Dep’t of Transp., 550 F. App’x 704, 710 (11th Cir. 2013)
(finding that the district court properly dismissed the plaintiffs’ ADEA claim because “the
amended complaint did not specifically allege the existence of a valid comparator or
otherwise allege facts giving rise to an inference of disparate treatment, the plaintiffs failed to
allege a valid ADEA claim.”).
Moreover, Plaintiff has failed to allege any facts demonstrating that his age played a
role in Defendant’s adverse employment decision. See Chapman, 229 F.3d at 1024. (“[T]he
plaintiff’s age must have actually played a role in the employer’s decision[-]making process
and had a determinative influence on the outcome.”). As such, the Court is unable to
reasonably infer that Plaintiff’s termination was substantially motivated by his age. See Smith
v. CH2M Hill, Inc., 521 F. App’x 773, 775 (11th Cir. 2013). Accordingly, Plaintiff has failed to
state a claim under the ADEA.
D. Leave to Amend
In his response to the Motion to Dismiss, Plaintiff argues that his complaint is
sufficient, but has moved, in the alternative, for the Court to grant him leave to file an
amended complaint. (See Doc. 6 at 4, 6). The Eleventh Circuit has held that “[f]iling a
motion is the proper method to request leave to amend a complaint.” Long v. Satz, 181 F.3d
1275, 1279 (11th Cir. 1999). “A motion for leave to amend should either set forth the
substance of the proposed amendment or attach a copy of the proposed amendment.” Id.;
see also U.S. ex rel. Atkins v. McInteer, 470 F.3d 1350, 1362 n. 25 (11th Cir. 2006) (“[A] motion
for leave to amend must attach the proposed amendment or set forth the substance thereof
.”). Because Plaintiff failed to state, with particularity, the substance of the proposed

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amendment or attach an amended complaint, Plaintiff’s Motion for Leave to Amend is
DENIED.

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CONCLUSION
Based on the forgoing, Defendant’s Motion for an Extension (Doc. 4) is
GRANTED. Defendant’s Motion to Dismiss (Doc. 5) is GRANTED without prejudice.
Plaintiff’s Motion for Leave to Amend (Doc. 6) is DENIED.
SO ORDERED, this _27th___ day of August, 2015.
/s/ Leslie J. Abrams
LESLIE J. ABRAMS, JUDGE
UNITED STATES DISTRICT COURT

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