Fortson v. COLUMBIA FARMS FEED MILL et al
ORDER granting in part and denying in part 19 Motion to Dismiss Complaint; granting 23 Motion to Amend/Correct. The Court also orders Fortson to file proof of service of his Complaint on all Defendants who have not been dismissed. Such proof of service shall be filed within thirty days of today's Order.Ordered by Judge Clay D. Land on 09/23/2013 (bsh) ***
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CAREY A. FORTSON,
CASE NO. 3:13-cv-51 (CDL)
COLUMBIA FARMS FEED MILL; ROBERT *
C. JOHNSON; BARRY CHRONIC;
MICHELLE CARLSON; and MELVIN
O R D E R
Plaintiff Carey A. Fortson (“Fortson”), proceeding pro se,
employer and its supervisory personnel, claiming that he was
These claims arise under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), 42
Employment Act, 29 U.S.C. § 621 et seq., (“ADEA”).
(“Complaint”) should be dismissed because (1) Fortson’s Equal
Employment Opportunity Commission (“EEOC”) charge was untimely
relief can be granted; (3) there is no such entity as “Columbia
Farms Feed Mill”; (4) Defendants Johnson and “Columbia Farms
Feed Mill” have not been served; and (5) Defendants Carlson,
Cronic, and Dutton were not Fortson’s employers and thus cannot
Fortson’s Title VII claims, Fortson’s ADEA claim, and Fortson’s
§ 1981 racially hostile work environment and state law claims to
The Court also grants Fortson’s motion to amend
his Complaint to correct the name of Defendant Columbia Farms of
Georgia (“Columbia Farms”) (ECF No. 23), and orders Fortson to
file proof of service of his Complaint on all Defendants who
have not been dismissed.
Such proof of service shall be filed
within thirty days of today’s Order.
If Fortson does not timely
file a proof of service as to the Defendants who have not been
Fortson was employed by Columbia Farms as a loader in its
July 27th, 2012 because Fortson was allegedly caught sleeping on
Fortson, who is African-American, alleges that during
racially hostile work environment.
2d Am. Compl. 5-8, ECF No.
11. Fortson claims that his coworkers yelled at him, cursed at
him, and called him racial epithets twenty-one times over a tenmonth period. Id. He alleges that these acts caused him severe
emotional distress and interfered with his ability to do his
job. Id. at 8, 11-12.
He also alleges that he reported this
employees were not properly trained to respond to complaints of
discrimination that was extreme and outrageous. Id. at 11.
Discrimination, ECF No. 1-1 [hereinafter EEOC Charge].
Title VII and the ADEA.
Notice of the charge was mailed to
Columbia Farms on February 15, 2013, and
Notice of Right to Sue from the EEOC on February 26, 2013.
Compl. Attach. 2, Dismissal & Notice of Rights, ECF No. 1-2.
Fortson initiated this action on May 9, 2013.
MOTION TO DISMISS STANDARD
When considering a 12(b)(6) motion to dismiss, the Court
exhibits attached thereto.
Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
sufficient factual allegations “to raise a right to relief above
formulaic recitation of the elements of a cause of action will
Although the complaint must contain factual
allegations that “raise a reasonable expectation that discovery
will reveal evidence of” the plaintiff’s claims, id. at 556,
complaint simply because ‘it strikes a savvy judge that actual
proof of those facts is improbable,’” Watts v. Fla. Int’l Univ.,
495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S.
Fortson’s Title VII Claims
Fortson alleges that his employer, Columbia Farms, and its
requirements enumerated in the statute, including the duty to
suit. 42 U.S.C. § 2000e-5; H&R Block E. Enters., Inc. v. Morris,
606 F.3d 1285, 1295 (11th Cir. 2010).
“Failure to file a timely
charge with the EEOC results in a bar of the claims contained in
App’x. 766, 767 (11th Cir. 2008) (per curium). In Georgia, a
discrimination charge must be filed “within 180 days of the last
discriminatory act.” 42 U.S.C. § 2000e-5(e)(1); H&R Block, 606
F.3d at 1295.
Fortson’s EEOC charge, which is dated February 5,
2013 and was received by the EEOC on February 12, 2013, states
that his employment was terminated on July 27, 2012, and that is
the last possible discriminatory act. EEOC Charge 1. Fortson
needed to file his EEOC charge within 180 days of the latest
Fortson’s EEOC charge was due on or before January 23, 2013.
Fortson’s EEOC charge is dated February 5, 2013 and was not
received by the EEOC until February 12, 2013.
VII claims are thus time-barred, and they must be dismissed.
To the extent that Fortson attempts to assert Title VII
claims against any of the individual Defendants, those claims
under Title VII unless they meet the definition of “employer,”
and Fortson did not allege any facts to show that the named
individuals meet that definition. Dearth v. Collins, 441 F.3d
931, 933 (11th Cir. 2006) (per curium).
Accordingly, all of
Fortson’s Title VII claims are dismissed.
Fortson’s ADEA Claim
Construing the Complaint liberally, Fortson asserts a claim
under the ADEA for age discrimination.
A plaintiff bringing
Corp., 457 F. App’x. 804, 805 (11th Cir. 2011) (per curium).
Therefore, Fortson’s ADEA claim must be dismissed.
III. Fortson’s § 1981 Claims
discrimination claims pursuant to § 1981.
1166, 1168 (N.D. Ga. 1982).
2d Am. Compl. 8-9.
Accordingly, Fortson has failed to
state a claim under § 1981 for gender discrimination.
The thrust of Fortson’s § 1981 race claim is that he was
subjected to a racially hostile work environment.
environment claims under section 1981 are based upon the wording
of 42 U.S.C. § 1981(b),” which “Congress specifically amended
. . . so plaintiffs could bring hostile work environment claims
under that statute as well as under Title VII.” Shields v. Fort
James Corp., 305 F.3d 1280, 1282 (11th Cir. 2002).
this claim, Fortson must prove that “‘the workplace is permeated
with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.’”
Harrington v. Disney Reg’l Entm’t, Inc., 276 F. App’x. 863, 875
(11th Cir. 2007) (per curium) (quoting Miller v. Kenworth of
Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)).
must show that: (1) he belongs to a protected group; (2) he has
been subject to unwelcome harassment; (3) the harassment was
conditions of employment and create a discriminatorily abusive
working environment; and (5) the employer is responsible for
such environment under either a theory of vicarious or direct
The Court finds that Plaintiff has sufficiently alleged a
claim under § 1981 arising from an alleged racially hostile work
Accordingly, Defendants’ Motion to Dismiss that claim is denied
as to Columbia Farms and Dutton.
Fortson’s State Law Claims
Negligent Supervision Claim
negligently . . .
subsequently harms the plaintiff.”
Farrell v. Time Serv., Inc.,
178 F. Supp. 2d 1295, 1300 (N.D. Ga. 2001).
The plaintiff must
allege and prove “that the employer ‘knew or should have known
of the employee’s propensity to engage in the conduct which
caused the plaintiff’s injury.’” Id. (quoting Harper v. City of
East Point, 237 Ga. App. 375, 376, 515 S.E.2d 623, 625 (1999)).
Fortson alleged that he was verbally harassed by coworkers and
that Columbia Farms failed to train its supervisors adequately
on how to prohibit and respond to such harassment. 2d Am. Compl.
While Fortson’s allegations in support of this
A supervisor, who contributes to the hostile environment and does
nothing to correct it, may be liable under § 1981 in addition to the
employee’s actual employer. See Bryant v. Jones, 575 F.3d 1281, 12941297 (11th Cir. 2009) (setting forth the elements required to prove a
§ 1981 hostile environment claim and analyzing claim in the §1983
context as to a county’s Chief Executive Officer and his three
assistants in their individual capacities).
allegations, as a pro se litigant, are enough to avoid dismissal
at this stage.
To establish a claim for
IIED, a plaintiff must allege
facts showing intentional or reckless conduct that is extreme
and outrageous and causes severe emotional distress. Tomczyk v.
Jocks & Jills Rests., LLC, 269 F. App’x. 867, 870 (11th Cir.
2008) (per curium).
Fortson alleges he was subject to pervasive
causing him “severe emotional distress.”
2d Am. Compl. 11-12.
He recites twenty-one instances of verbal abuse to support this
claim and asserts that the supervisory employees did nothing to
stop it despite his complaints. 2d. Am. Compl. 5-8. Considering
status, he has alleged sufficient facts to
allow this claim to go forward.
Defendants’ Motion to Dismiss (ECF No. 19) is granted in
claims are untimely and are dismissed.
Fortson has also failed
to state a claim for gender discrimination under § 1981 and that
claim is dismissed.
Fortson’s § 1981 claims for a racially
hostile work environment against Columbia Farms and Dutton and
Fortson’s state law claims for IIED and negligent supervision
Plaintiff shall serve any Defendant that has not yet been
properly served with Plaintiff’s Complaint within thirty days of
If service is not accomplished in that time,
Defendants may file a renewed motion to dismiss for lack of
IT IS SO ORDERED, this 23rd day of September, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
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