GRAY v. ROOMS TO GO FURNITURE CORPORATION OF GEORGIA

Filing 11

ORDER granting Defendant's 8 Motion to Dismiss for Failure to State a Claim and dismissing Plaintiff's 1 Complaint with prejudice. Ordered by US DISTRICT JUDGE TILMAN E. SELF, III on 11/22/2024. (ech)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
BRENDA GRAY,
Plaintiff,
v.
ROOMS TO GO FURNITURE
CORPORATION OF GEORGIA, et al.,

CIVIL ACTION NO.
5:24-cv-00227-TES

Defendants.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant RTG Furniture
Corp. of Georgia moves to dismiss pro se Plaintiff Brenda Gray’s Complaint [Doc. 1].
[Doc. 8]. Defendant RTG Furniture Corp. of Georgia, better known as “Rooms To Go,”
filed its Motion to Dismiss [Doc. 8] on September 23, 2024. [Doc. 8, p. 19]. After the time
for Plaintiff to respond to Rooms To Go’s Motion passed without any response, the
Court gave Plaintiff additional time to respond and warned her “of what may happen
to her case if she fails to file a response brief.” [Doc. 10, p. 1]; LR 7.2, MDGa.
By all accounts, it appears that Plaintiff no longer wants to prosecute this case as
she never filed a response brief or exercised her right to amend her Complaint in light
of Rooms To Go’s dismissal efforts. See Fed. R. Civ. P. 15(a)(1). However, “even if a
plaintiff fails to respond to individual arguments in a defendant’s motion to dismiss,

that failure does not amount to a waiver of her position that her complaint stated a
plausible claim, provided that the district court ‘considered the merits’ of those
arguments and ‘relied on them in granting the motion to dismiss.’” Jacob v. Mentor
Worldwide, LLC, 40 F.4th 1329, 1337 (11th Cir. 2022) (quoting Hi-Tech Pharms., Inc. v. HBS
Int’l Corp., 910 F.3d 1186, 1194 (11th Cir. 2018)). Accordingly, Rooms To Go’s arguments
must still be considered in determining whether Plaintiff’s Complaint states a claim for
relief upon which relief may be granted. 1
BACKGROUND
According to Plaintiff’s Complaint, 2 she claims that for just over six years Rooms
To Go violated her rights under Title VII of the Civil Rights Act of 1964 (“Title VII”) and
the Age Discrimination in Employment Act of 1967 3 (“ADEA”). [Doc. 1, pp. 3–4, 5

Throughout its Motion, Rooms To Go argues (several times) that Plaintiff’s Complaint should be
dismissed because she failed to allege a sufficient comparator. See [Doc. 8, pp. 7–8, 10–12]. Such an
argument, however, is misplaced. The Eleventh Circuit has made itself quite clear that employees need
not point to a comparator in their complaints. Pointing to a comparator—an individual who is “similarly
situated in all material respects”—goes to the heart of establishing a prima facie case for employment
discrimination claims under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and “the make or
break of a prima facie case is not a pleading standard by which to measure the legal sufficiency of a
complaint asserting such claims.” Hudson v. Macon-Bibb Cnty. Planning & Zoning Comm’n, No. 5:24-cv00259-TES, 2024 WL 4608577 (citing Davis v. Mia.-Dade Cnty., No. 23-12480, 2024 WL 4051215, at *3 (11th
Cir. Sept. 5, 2024)); see also Lewis v. City of Union City, 918 F.3d 1213, 1226 (11th Cir. 2019); Surtain v. Hamlin
Terrace Found., 789 F.3d 1239, 1246 (11th Cir. 2015). Suffice it to say, the Court did not rely on Rooms To
Go’s arguments that Plaintiff’s claims should be dismissed because she failed to point to an “adequate” or
“viable” comparator. See Jacob, 40 F.4th at 1337; [Doc. 8, pp. 8, 10].
1

Complaints filed by pro se parties are construed liberally, and their allegations are held to a less
stringent standard than formal pleadings drafted by lawyers. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003).
2

3

Plaintiff alleges in her Complaint that she was born in 1969. [Doc. 1, p. 5].

2

(Plaintiff’s recollection that the alleged discriminatory acts occurred “[f]rom June 2017
to August 2023”)]. Plaintiff provides only the following facts for her case:
Wrongful termination based on age, race, religion, and sex. Continued
bullying and harassment by Tony Sherron. Complaints ignored by Hr (sic)
Rep Ana Yazbeck and Sharon Tyler. Passed over for promotion for a job
that I was already doing. Position given to white female that I trained. I was
intimidated by white male upper management every time that Tony would
bully me if I refused to do his work under his employee password. Their
last attempt to force me out was when my work schedule was changed so
that I was unable to attend my religious activities. I was replaced with
younger associates after 17 years of service.
[Id. at p. 5]. Based on these allegations, Plaintiff initiated proceedings with the Equal
Employment Opportunity Commission (“EEOC”) on February 21, 2023. [Doc. 8-1, p. 2].
In her charge of discrimination 4 to the EEOC, Plaintiff wrote:
I was terminated from a job after 17 years of service. I was continually
harassed and retailiated (sic) against by James Powell, Tony Sherron, Robert
Manns, Zaid Hakim, and Ron Smith because I am a black female who is
actively involved in church activities yet still dedicated to my job
responsibilities.
[Id.]. On April 9, 2024, the EEOC issued Plaintiff her Notice of Right to Sue [Doc. 1-1],
and she commenced this lawsuit on July 10, 2024. See [Doc. 1].

Even though Plaintiff didn’t attach her charge filed with the EEOC to her Complaint, Rooms To Go filed
it as an exhibit to its Motion. See, e.g., [Doc. 8-1]. Since it’s central to Plaintiff’s claims and neither she nor
Rooms To Go challenge its authenticity, there’s no reason why it can’t be considered by the Court. SFM
Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010) (“In ruling upon a motion to
dismiss, [a] district court may consider an extrinsic document if it is (1) central to [a] plaintiff’s claim, and
(2) its authenticity is not challenged.”); Chesnut v. Ethan Allen Retail, Inc., 971 F. Supp. 2d 1223, 1228–29
(N.D. Ga. 2013) (considering EEOC charge to determine timeliness of filing without converting to motion
for summary judgment) (collecting cases).
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DISCUSSION
A.

Legal Standard

When ruling on a motion under Rule 12(b)(6), it is a cardinal rule that district
courts must accept the factual allegations set forth in a complaint as true. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 572 (2007). In accepting the factual allegations as true, courts
are to construe the reasonable inferences from them in the light most favorable to a
plaintiff. Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998).
However, through Rule 12(b)(6), a defendant may “test the facial sufficiency” of
a complaint by way of a motion to dismiss. Ghee v. Comcast Cable Commc’ns, LLC, No. 2212867, 2023 WL 3813503, at *2 (11th Cir. June 5, 2023) (quoting Brooks v. Blue Cross &
Blue Shield, 116 F.3d 1364, 1368 (11th Cir. 1997)). Such a “motion is an ‘assertion by a
defendant that, even if the facts alleged by a plaintiff are true, the complaint still fails as
a matter of law to state a claim upon which relief may be granted.’” Barreth v. Reyes 1,
Inc., No. 5:19-cv-00320-TES, 2020 WL 4370137, at *2 (M.D. Ga. July 29, 2020) (citation
omitted). However, a complaint will survive a Rule 12(b)(6)-based motion if it alleges
sufficient factual matter (accepted as true) that states a claim for relief that is plausible
on its face. McCullough v. Finley, 907 F.3d 1324, 1333 (11th Cir. 2018) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678–79 (2009) (emphasis added).
Now, whether a complaint states a claim for relief is measured by reference to
the pleading standard of Federal Rule of Civil Procedure 8—a “short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2); Barreth, 2020 WL 4370137, at *2 (citation omitted). Rule 8 doesn’t require detailed
factual allegations, but it does require “more than unadorned, the-defendantunlawfully-harmed-me accusations.” McCullough, 907 F.3d at 1333 (citation omitted)
(alterations adopted). Its sole purpose is to provide a defendant “with ‘fair notice’ of the
claims and the ‘grounds’ for entitlement to relief.” Barreth, 2020 WL 4370137, at *2
(citation omitted); Twombly, 550 U.S. at 555–56.
To decide whether a complaint survives a motion to dismiss, courts use a twostep framework. McCullough, 907 F.3d at 1333 (citation omitted). The first step is to
identify the allegations that are “no more than conclusions.” Id. (quoting Iqbal, 556 U.S.
at 679). “Conclusory allegations are not entitled to the assumption of truth.” Id. After
disregarding the conclusory allegations, the second step is to “assume any remaining
factual allegations are true and determine whether those factual allegations ‘plausibly
give rise to an entitlement to relief.’” Id. “A court decides whether [Rule 8’s pleading
standard] is met by separating the legal conclusions from the factual allegations,
assuming the truth of only the factual allegations, and then determining whether those
allegations allow [it] to reasonably infer that [a] plaintiff [may be] entitled to the legal
remedy sought.” Barreth, 2020 WL 4370137, at *2 (citation omitted).
When drafting a complaint, “[a] plaintiff must plead more than labels and
conclusions or a formulaic recitation of the elements of a cause of action.” McCullough,

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907 F.3d at 1333 (quoting Twombly, 550 U.S. at 555). A plaintiff may use legal
conclusions to structure a complaint, but they “must be supported by factual
allegations.” McCullough, 907 F.3d at 1333 (quoting Iqbal, 556 U.S. at 679). While courts,
in ruling on a motion to dismiss, must take all factual allegations in a complaint as true,
they are not bound to accept a legal conclusion couched as a factual allegation. Iqbal, 556
U.S. at 678. Courts must “identify conclusory allegations and then discard them—not
‘on the ground that they are unrealistic or nonsensical’ but because their conclusory
nature ‘disentitles them to the presumption of truth.’” McCullough, 907 F.3d at 1333
(quoting Iqbal, 556 U.S. at 681).
The issue to be decided when considering a motion to dismiss “is necessarily a
limited one.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) overruled on other grounds by
Davis v. Scheuer, 468 U.S. 183 (1984). The issue is not whether the claimant will
ultimately prevail, but “whether the claimant is entitled to offer evidence to support the
claims.” Id. The factual allegations in a complaint “must be enough to raise a right to
relief above the speculative level” and cannot “merely create[ ] a suspicion of a legally
cognizable right of action.” Twombly, 550 U.S. at 555. Finally, and in this case, critically,
a complaint that tenders “‘naked assertions’ devoid of ‘further factual enhancement’”
will not survive against a motion to dismiss. Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 557) (cleaned up). To survive, a complaint must allege enough facts “to raise a
reasonable expectation that discovery will reveal evidence” supporting a claim.

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Twombly, 550 U.S. at 556.
B.

Plaintiff’s Title VII and ADEA Claims

Before suing under either Title VII or the ADEA, an aggrieved employee must
first exhaust the required federal administrative remedies by filing a charge of
discrimination with the EEOC. 5 Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir.
2001). “Exhaustion serves one primary purpose: to allow the EEOC to ‘have the first
opportunity to investigate the alleged discriminatory practices [so that it can] perform
its role in obtaining voluntary compliance and promoting conciliation efforts.’” Collins
v. Navicent Health, Inc., 499 F. Supp. 3d 1307, 1327 (M.D. Ga. 2020) (quoting Chesnut v.
CC Servs., Inc., No. 5:18-CV-404 (MTT), 2020 WL 1433876, at *4 (M.D. Ga. Mar. 24,
2020)). Considering the purpose of the EEOC exhaustion requirement, the Eleventh
Circuit has held that 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.” Gregory v. Ga. Dep’t of Hum. Res., 355 F.3d 1277, 1280 (11th Cir. 2004).
With this in mind, the Court notes that “new acts of discrimination [lodged in a judicial

Although “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to
suit in federal court,” it is, however, a statutory requirement. Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393, 398 (1982).

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complaint] are inappropriate.” 6 Batson v. Salvation Army, 897 F.3d 1320, 1327 (11th Cir.
2018) (quoting Gregory, 355 F.3d at 1280).
In Georgia, because it is a non-deferral state, 7 an aggrieved employee must file a
charge of discrimination with the EEOC within 180 days of the date of the alleged
discrimination. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(1)(A); see also 29 C.F.R. §
1626.7. It has long since been the rule in the Eleventh Circuit that the 180 days begins
running from the date the employee knows or reasonably should have known that she
has been discriminated against. Hill v. Metro. Atlanta Rapid Transit Auth., 841 F.2d 1533,
1545 (11th Cir. 1988). Stated differently, discrete acts of discrimination and retaliation
that “occurred prior to the date of the EEOC charge” typically may not be included in a
judicial complaint because they are not exhausted. Thomas v. Mia. Dade Pub. Health Tr.,
369 F. App’x 19, 22–23 (11th Cir. 2010).
Only those claims arising within 180 days of the filing of a charge are actionable.

Plaintiff attempts to bring a failure-to-promote claim; however, her EEOC charge never made any
allegation concerning a failure to promote. See [Doc. 1, p. 4], in connection with [Doc. 8-1, p. 2]. Therefore,
such a claim cannot reasonably be expected to grow out of Plaintiff’s EEOC charge, and she cannot now
attempt to insert one in her Complaint. Gregory, 355 F.3d at 1280; Collins, 499 F. Supp. 3d at 1327; see also
[Doc. 8, pp. 4–5].
6

“Non-deferral states” are those states without any laws banning various types of discrimination in the
workplace and without a state entity authorized to grant or to seek relief for victims of such
discrimination. Grayson v. K Mart Corp., 79 F.3d 1086, 1100 n.20 (11th Cir. 1996); Wilkerson, 270 F.3d at 1317
(discussing that for a charge regarding discrimination under Title VII “to be timely in a non-deferral state
such as Georgia, it must be filed within 180 days of the last discriminatory act[]”); Sheffield v. United Parcel
Serv., Inc., 403 F. App’x. 452, 454 n.2 (11th Cir. 2010) (quoting Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d
1208, 1214 n.2 (11th Cir. 2001)) (recognizing that “Georgia is a non-deferral state because it is without
‘laws banning age discrimination in employment and without state entities authorized to grant or seek
relief for victims of age discrimination[]’”).
7

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EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir. 2002) (citing Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002)). Untimely claims are barred and fail to
state a claim upon which relief would be granted. Id. If a party fails to comply with the
charge-filing requirement, she cannot assert Title VII- or ADEA-based claims in court.
Nat’l R.R. Passenger Corp., 536 U.S. at 109 (“A claim is time barred if it is not filed within
[the relevant] time limits.”). 8
Here, Plaintiff’s EEOC charge is dated February 21, 2023. [Doc. 8-1, p. 2].
Therefore, as Rooms To Go contends, Plaintiff’s charge “only covers the 180-day period
reaching back to August 25, 202[2].” [Doc. 8, p. 6]. Candidly, Plaintiff claims that the
alleged discriminatory acts spanned “from June 2017 to August 2023,” but she doesn’t
provide any further detail as to when exactly these acts allegedly occurred sufficient for

Plaintiff asserts in both her Complaint and her EEOC charge that she was subject to continuous
harassment. [Doc. 1, p. 5]; [Doc. 8-1, p. 2]. To that end, “[h]ostile environment claims are different in kind
from discrete acts.” Nat’l R.R. Passenger Corp., 536 U.S. at 115. They are “composed of a series of separate
acts that collectively constitute one ‘unlawful employment practice.’” Id. at 117 (quoting 42 U.S.C. §
2000e-5(e)(1)). Therefore, “[i]t does not matter, for purposes of [Title VII], that some of the component acts
of the hostile work environment fall outside the statutory time period.” Id. However, at least one alleged
act contributing to a hostile work environment claim must occur within the filing period. Id. (“Provided
that an act contributing to the claim occurs within the filing period, the entire time period of the hostile
environment may be considered by a court for the purposes of determining liability.”). If an employee
can provide an allegation of unlawful or harassing conduct that is within the 180-day cut-off, then
everything that encompasses what the employee considers to be the “hostile environment” may be
considered. Id. Plaintiff, however, fails to provide any specific dates in support of a hostile work
environment claim, so neither the Court nor Rooms To Go has any indication that at least one allegation
of unlawful or harassing conduct fell within the 180-day period.
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the Court to determine whether they are time barred. 9 [Doc. 1, p. 5]. Nevertheless,
notwithstanding her status as a pro se litigant, Plaintiff faces real hurdles when it comes
to the pleading sufficiency of her Complaint—namely, Rule 8’s pleading standards and
how those standards are applied through Twombly, Iqbal, and McCullough.
Liberally construed, Plaintiff alleges that on various occasions “from June 2017 to
August 2023” Rooms To Go engaged in unlawful employment practices and
“wrongful[ly] terminat[ed] [her] based on age, race, religion, and sex” at some
undisclosed point in August 2023. [Id.]. As textbook examples of legal conclusions,
those allegations are not entitled to any presumption of truth. McCullough, 907 F.3d at
1333 (quoting Iqbal, 556 U.S. at 681). Moreover, Plaintiff barely expounds on those legal
conclusions—claiming that she was subjected to “harassment by Tony Sherron,” that
her complaints went ignored, that she was passed over for a promotion, 10 that she was
“replaced with younger associates,” and that she was unable to attend her religious
activities when Rooms To Go changed her work schedule. [Doc. 1, p. 5]; see also
McCullough, 907 F.3d at 1333 (quoting Iqbal, 556 U.S. at 679) (holding that a plaintiff may
use legal conclusions to structure a complaint but legal conclusions “must be supported

9 If there are discriminatory or retaliatory allegations or any other allegations concerning unlawful
employment practices that occurred from the date Plaintiff filed her EEOC charge (February 21, 2023)
through August 2023—when Plaintiff claims the alleged discriminatory acts ended—then she would be
required to file a new charge with the EEOC because those allegations could not have been
administratively exhausted. Gregory, 355 F.3d at 1280; see [Doc. 8-1, p. 2], in connection with [Doc. 1-1, p. 5].

As the Court discussed above, a failure-to-promote claim is not properly before the Court since it was
not first raised in Plaintiff’s EEOC charge. See n.6, supra.
10

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by factual allegations”). Without anything further, Plaintiff also asserts a retaliation
claim, but she doesn’t delineate which of her allegations pertain to her discrimination,
conditions-of-employment, or failure-to-promote claims and which, if any, apply to her
supposed retaliation claim. See [Doc. 1, pp. 4–5]. Lastly, with respect to Plaintiff’s claim
for age discrimination, she alleges that she “was replaced with younger associates after
17 years of service”; however, such a thin allegation does not plausibly allege that
Rooms To Go fired her because of her age. See Smith v. CH2M Hill, Inc., 521 F. App’x
773, 774 (11th Cir. 2013) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009),
and Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013)) (“To show age
discrimination, the plaintiff must prove that age was the ‘but-for’ cause of the
challenged decision.”); [Doc. 8, p. 12 (citing Liebman v. Metropolitan Life Ins., 808 F.3d
1294, 1298 (11th Cir. 2015))]; see, e.g., [Doc. 1, p. 5]
The lack of factual detail in this case led to Rooms To Go’s argument that
“Plaintiff’s allegations flunk plausibility pleading standards.” [Doc. 8, p. 2]. As pled,
Plaintiff’s Complaint fails to provide Rooms To Go “with ‘fair notice’ of the claims and
the ‘grounds’ for entitlement to relief.” Barreth, 2020 WL 4370137, at *2 (citation
omitted); Twombly, 550 U.S. at 555–56. With such threadbare allegations, Plaintiff merely
presents “unadorned, the-defendant-unlawfully-harmed-me accusations.” McCullough,
907 F.3d at 1333 (citation omitted). While courts (as mentioned above) must show
leniency to pro se litigants, courts cannot “serve as de facto counsel or ‘rewrite an

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otherwise deficient pleading in order to sustain an action.’” Nalls v. Coleman Low Fed.
Inst., 307 F. App’x 296, 298 (11th Cir. 2009) (quoting GJR Invs., Inc. v. Cnty. of Escambia,
132 F.3d 1359, 1369 (11th Cir. 1998)); see n.2, supra.
Plaintiff’s allegations do not “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. To be sure, there are barely any factual allegations at all. To
survive, a complaint must allege enough facts “to raise a reasonable expectation that
discovery will reveal evidence” supporting a claim, and Plaintiff’s Complaint fails to
allege such facts. Id. at 556.
CONCLUSION
Accordingly, the Court GRANTS Defendant RTG Furniture Corp. of Georgia’s
Motion to Dismiss [Doc. 8] and DISMISSES Plaintiff’s Complaint [Doc. 1] with
prejudice. 11 The Court DIRECTS the Clerk of Court to ENTER Judgment and CLOSE
this case.
SO ORDERED, this 22nd day of November, 2024.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT
The Court assuredly recognizes that where “a more carefully drafted complaint might state a claim, a
plaintiff must be given at least one chance to amend the complaint before the district court dismisses the
action with prejudice.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). However, given Plaintiff’s
readily apparent failure to prosecute her case by failing to respond to Rooms To Go’s Motion, there is “a
clear indication that [she] does not want to amend [her] complaint.” Woldeab v. Dekalb Cnty. Bd. of Educ.,
885 F.3d 1289, 1291 (11th Cir. 2018). Further, “[i]f a dismissal without prejudice ‘has the effect of
precluding [a] plaintiff from refiling [her] claim due to the running of the statute of limitations[,] the
dismissal is tantamount to a dismissal with prejudice.’” Justice v. United States, 6 F.3d 1474, 1481 n.15 (11th
Cir. 1993) (cleaned up).
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