THOMAS v. MARTIN'S FAMOUS PASTRY SHOPPE et al
ORDER dismissing 14 Third Amended Complaint for failure to state a claim; finding as moot 6 Motion for Summary Judgment; finding as moot 15 Motion for Misc. Relief. Ordered by U.S. District Judge HUGH LAWSON on 3/10/2015. (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
TERRANCE T. THOMAS,
Civil Action No. 7:14-CV-181 (HL)
SHOPPE, JIM MARTIN, SCOTT
Before the Court is the Third Amended Complaint (Doc. 14) by Plaintiff
Terrance Thomas (“Plaintiff”). Because he has been permitted to proceed in this
matter in forma pauperis, (see Order, February 4, 2015, Doc. 11), the Court must
review his complaint to determine whether it is (1) frivolous or malicious; (2) fails
to state a claim upon which relief may be granted; or (3) seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Having done so, the Court concludes that Plaintiff’s Third Amended Complaint
must be dismissed for failure to state a claim upon which relief may be granted.
Plaintiff alleges that he was hired as a load coordinator by Martin’s
Famous Pastry Shoppe on September 15, 2008. In December 2008, he was
promoted to a line control supervisor’s position, becoming the first African
American supervisor in the company’s history. In May 2013, Assistant Manager
Stephen Raney (“Raney”) relieved Plaintiff of his job duties. The following month
Plaintiff told Scott Munger (“Munger”), who is the director of operations at
Martin’s Famous Pastry Shoppe, about what had occurred and requested an
independent investigation. Munger declined to become involved in the matter.
Plaintiff was no more successful in submitting his investigation request to a
company vice president. In July 2013, Raney and two other individuals, including
a human resources representative, met with Plaintiff and informed him that his
employment was being terminated “for not emptying the HACCP box at the end
of his shift.” Plaintiff asked for proof that he had responsibility for the item left in
the box, but no evidence was provided. Alleging that this termination violated his
due process rights, constituted unlawful employment discrimination, and
breached an implied covenant of good faith and fair dealing, Plaintiff seeks
damages under 42 U.S.C. §§ 1981, 1983, 1985, and 1988. The complaint also
asks for declaratory and injunctive relief, without stating what specific relief is
needed. (Third Amended Complaint, ¶¶13-19, 31-32, 39).
Nothing in Plaintiff’s complaint indicates that Defendants violated or
conspired to violate his constitutional rights. Thus, the claims under 42 U.S.C. §§
1983 and 1985 are dismissed. See Molette v. Georgia, 469 F. App’x 766, 768
(11th Cir. 2012) (describing a § 1983 claim); Kush v. Rutledge, 460 U.S. 719,
724-26, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983) (analyzing § 1985).
Nor does the Third Amended Complaint adequately allege a claim for
breach of an implied covenant of good faith and fair dealing upon which relief
could be granted. Under Georgia law, “Every contract implies a covenant of good
faith and fair dealing in the contract’s performance and enforcement.” Myung
Sung Presbyterian Church, Inc. v. N. Am. Ass’n of Slavic Churches & Ministries,
Inc., 291 Ga. App. 808, 810 (2008). Thus, the “implied covenant modifies and
becomes a part of the provisions of the contract, but the covenant cannot be
breached apart from the contract provisions it modifies and therefore cannot
provide an independent basis for liability.” Id. Plaintiff has not brought a breach of
contract claim.1 Consequently, his claim for breach of an implied covenant of
good faith and fair dealing must be dismissed.
Plaintiff’s § 1981 claim that he has suffered unlawful employment
discrimination is also dismissed. Establishing a discrimination claim under § 1981
requires an employee to allege that he belongs to “a protected class and was
subjected to an adverse employment action in contrast with similarly situated
employees outside the protected class.” Butler v. Ala. Dep’t of Transp., 536 F.3d
1209, 1215 (11th Cir. 2008) (internal citation and quotation omitted). Plaintiff has
not alleged there was any similarly-situated, non-black employee at Martin’s
In fact, the only allegations even mentioning a contract merely state that Plaintiff was
told his “contract was being terminated for not emptying the HACCP box at the end of
his shift” and that his “contract [was] terminated without due process.” (Third Amended
Complaint, ¶¶17, 37, 41).
Famous Pastry Shoppe who was not fired. He has also failed to allege facts that
would otherwise create “a convincing mosaic of circumstantial evidence that
would allow a jury to infer intentional discrimination by the decisionmaker.” Smith
v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (internal citation
and quotation omitted). The factual allegations in the complaint are not sufficient
to state a plausible claim that Plaintiff is the victim of unlawful employment
discrimination. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009).
All that remain are Plaintiff’s claim for attorney fees under § 1988 and his
requests for injunctive and declaratory relief. Plaintiff will obviously never be
entitled to attorney fees in this matter because all of the substantive claims for
which he might receive them have been dismissed. See 42 U.S.C. § 1988(b)
(listing the types of civil actions for which a prevailing party might receive
attorney fees under that statute). Given that he does not specify what injunctive
and declaratory relief he is entitled to, these requests are clearly insufficient to
prevent his complaint from being dismissed.
The Court is persuaded that allowing Plaintiff further opportunities to
amend his complaint would be futile and a waste of judicial resources. Clearly
Plaintiff’s best chance for alleging a viable claim would be with his employment
discrimination claim. However, even though the Court previously allowed Plaintiff
to amend his complaint and provided detailed descriptions for what might
constitute a plausible employment discrimination claim, Plaintiff has still not been
able to adequately allege such a claim.2 All of Plaintiff’s outstanding motions are
moot, and this case is dismissed.
SO ORDERED, this the 10th day of March, 2015.
s/ Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE
Rather significantly, although Plaintiff included references to “Suspected White
Supremacy” in earlier iterations of his complaint, (see Complaint, Doc. 1, ¶13; Amended
Complaint, Doc. 5, ¶13), the Third Amended Complaint omits this term. It would seem
that Plaintiff knows of no facts making it plausible that Martin’s Famous Pastry Shoppe
discriminated against him because of his race or on any other unlawful basis.
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