Fortson v. COLUMBIA FARMS FEED MILL et al

Filing 25

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
ATHENS DIVISION
CAREY A. FORTSON,

*

Plaintiff,

*

vs.

*
CASE NO. 3:13-cv-51 (CDL)

COLUMBIA FARMS FEED MILL; ROBERT *
C. JOHNSON; BARRY CHRONIC;
MICHELLE CARLSON; and MELVIN
*
DUTTON,
*
Defendants.
*
O R D E R
Plaintiff Carey A. Fortson (“Fortson”), proceeding pro se,
asserts

employment

discrimination

claims

against

his

former

employer and its supervisory personnel, claiming that he was
discriminated

against

based

upon

his

race,

gender,

and

age.

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
U.S.C.

§

1981

(Ҥ

1981”),

and

the

Age

Discrimination

Employment Act, 29 U.S.C. § 621 et seq., (“ADEA”).
also

alleges

intentional
Presently
Dismiss

state

law

infliction

pending

before

Plaintiff’s

Defendants

contend

claims
of

that

negligent

emotional

the

Second

for

Court

Amended

Fortson’s

is

Defendants’

Second

Plaintiff

supervision

distress

Complaint

in

(ECF

Amended

and

(“IIED”).
Motion
No.

to

19).

Complaint

(“Complaint”) should be dismissed because (1) Fortson’s Equal

Employment Opportunity Commission (“EEOC”) charge was untimely
filed;

(2)

the

Complaint

fails

to

state

a

claim

upon

which

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
be liable.
For

the

reasons

set

forth

below,

the

Court

dismisses

Fortson’s Title VII claims, Fortson’s ADEA claim, and Fortson’s
gender

discrimination

claims.

The

Court

permits

Fortson’s

§ 1981 racially hostile work environment and state law claims to
go forward.

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
served,

the

Court

will

dismiss

his

claims

as

to

those

Defendants.
FACTUAL ALLEGATIONS
Fortson was employed by Columbia Farms as a loader in its
feed

mill.

Columbia

Farms

terminated

Fortson’s

employment

on

July 27th, 2012 because Fortson was allegedly caught sleeping on

2

the job.
his

Fortson, who is African-American, alleges that during

employment

with

Columbia

Farms

racially hostile work environment.

he

was

subjected

to

a

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.
harassment
relief.

to

Id.

a

at

He also alleges that he reported this

manager
2,

8.

for
He

Columbia
also

Farms

claims

but

that

obtained

the

no

managerial

employees were not properly trained to respond to complaints of
discrimination
contends

and

that

harassment.

he

was

Id.

subjected

at

10.

to

a

Finally,
pattern

Fortson
of

race

discrimination that was extreme and outrageous. Id. at 11.
On

February

Discrimination

12,

with

2013,

the

Fortson
Compl.

EEOC.

filed

a

Attach.

Charge

1,

Charge

Discrimination, ECF No. 1-1 [hereinafter EEOC Charge].
charge,

Fortson

(African-American)

alleged
and

age

Title VII and the ADEA.

discrimination
(fifty-one

based

years)

in

on

of
of

In his

his

race

violation

of

Notice of the charge was mailed to

Columbia Farms on February 15, 2013, and

Fortson

received a

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.

3

MOTION TO DISMISS STANDARD
When considering a 12(b)(6) motion to dismiss, the Court
must

accept

complaint

as

and

true

all

facts

limit

its

consideration

exhibits attached thereto.

set

forth
to

in

the

the

plaintiff’s

pleadings

and

Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
959

(11th

Cir.

2009).

“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.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Twombly,

550

U.S.

at

570).

The

complaint

must

include

sufficient factual allegations “to raise a right to relief above
the

speculative

level.”

Twombly,

550

U.S.

at

555.

“[A]

formulaic recitation of the elements of a cause of action will
not do[.]”

Id.

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,
“Rule

12(b)(6)

does

not

permit

dismissal

of

a

well-pleaded

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.
at 556).

4

DISCUSSION
I.

Fortson’s Title VII Claims
Fortson alleges that his employer, Columbia Farms, and its

supervisory

personnel

discrimination
proceeding

in

under

subjected

violation
Title

of

VII

him

to

Title

must

gender

VII.

comply

A
with

and

race

plaintiff
procedural

requirements enumerated in the statute, including the duty to
exhaust

administrative

remedies

as

a

prerequisite

to

filing

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
the

untimely

charge.”

Jordan

v.

City

of

Montgomery,

283

F.

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
alleged

act

of

discrimination,

July

27,

2012.

Therefore,

Fortson’s EEOC charge was due on or before January 23, 2013.
Fortson’s EEOC charge is dated February 5, 2013 and was not

5

received by the EEOC until February 12, 2013.

Fortson’s Title

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
must

be

dismissed

because

individuals

cannot

be

held

liable

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.
II.

Fortson’s ADEA Claim
Construing the Complaint liberally, Fortson asserts a claim

under the ADEA for age discrimination.
suit

under

requirements

the
as

ADEA
under

is

subject

Title

VII.

A plaintiff bringing

to

the

Kelly

v.

same
Dun

exhaustion

&

Bradstreet

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
Fortson

arguably

attempts

to

allege

discrimination claims pursuant to § 1981.
Section

1981,

discrimination.”

however,
Hayden

“proscribes
v.

1166, 1168 (N.D. Ga. 1982).

Atlanta

race

and

gender

2d Am. Compl. 8-9.

race,

Newspapers,

and
534

not

sex,

F.

Supp.

Accordingly, Fortson has failed to

state a claim under § 1981 for gender discrimination.

6

The thrust of Fortson’s § 1981 race claim is that he was
subjected to a racially hostile work environment.

“Hostile work

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).

To establish

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)).

Fortson

must show that: (1) he belongs to a protected group; (2) he has
been subject to unwelcome harassment; (3) the harassment was
based

on

a

protected

sufficiently

severe

characteristic;
or

pervasive

to

(4)

the

alter

harassment
the

terms

was
and

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
liability. Id.
The Court finds that Plaintiff has sufficiently alleged a
claim under § 1981 arising from an alleged racially hostile work

7

environment

against

Columbia

Farms

and

its

manager,

Dutton.1

Accordingly, Defendants’ Motion to Dismiss that claim is denied
as to Columbia Farms and Dutton.
IV.

Fortson’s State Law Claims
A.

Negligent Supervision Claim

Fortson

alleges

negligent

Columbia

Farms.

“A

claim

brought

pursuant

to

Georgia

negligently . . .

supervises

for

supervision
negligent

law
an

subsequently harms the plaintiff.”

.

arises

employee

claims
.

when
and

.

against

supervision
an

employer

that

employee

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.
5-8, 10-11.
claim

are

While Fortson’s allegations in support of this
arguably

conclusory,

1

the

Court

finds

that

his

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).

8

allegations, as a pro se litigant, are enough to avoid dismissal
at this stage.
B.

IIED Claim

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).
harassment

that

Fortson alleges he was subject to pervasive

constituted

“extreme

and

outrageous

causing him “severe emotional distress.”

conduct”

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
Fortson’s

pro se

status, he has alleged sufficient facts to

allow this claim to go forward.
CONCLUSION
Defendants’ Motion to Dismiss (ECF No. 19) is granted in
part

and

alleges

denied

in

part.

discrimination

To

under

the

extent

Fortson’s

Title

VII

the

claims are untimely and are dismissed.

and

Complaint

ADEA,

those

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

9

Fortson’s state law claims for IIED and negligent supervision
remain pending.
Plaintiff shall serve any Defendant that has not yet been
properly served with Plaintiff’s Complaint within thirty days of
today’s Order.

If service is not accomplished in that time,

Defendants may file a renewed motion to dismiss for lack of
proper service.

IT IS SO ORDERED, this 23rd day of September, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

10