BROWN v. SOUTHERN SENIOR ASSOCIATES, LLC et al

Filing 27

ORDER granting 17 Motion to Dismiss Complaint. The stay of discovery is hereby lifted. Plaintiff and Defendant Oak Grove shall submit a proposed scheduling and discovery order by not later than December 14, 2023. Ordered by US DISTRICT JUDGE HUGH LAWSON on 11/14/2023. (aks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
TAMAR BROWN,
Plaintiff,
v.

Civil Action No. 7:23-CV-68 (HL)

SOUTHERN SENIOR ASSOCIATES, LLC
d/b/a THE RESIDENCE AT OAK GROVE,
a Foreign Limited Liability Company,
and PLC EMPLOYEE II, LLC, Foreign
Limited Liability Company,
Defendants.
ORDER
Plaintiff Tamar Brown began working as the Executive Director for an
assisted living facility managed by Defendant PLC Employee II, LLC (“PLC”), a
third-party management company, in August 2020. The owner of the facility
terminated its contract with PLC in August 2021. Defendant Southern Senior
Associates, LLC d/b/a The Residence at Oak Grove (“Oak Grove”) assumed
management of the facility on October 1, 2021. Plaintiff remained on Oak
Grove’s staff until her termination on December 28, 2021.
Plaintiff filed this action against Defendants alleging Defendant Oak Grove
discriminated and retaliated against her based on her race in violation of Title VII
of the Civil Rights Act of 1962, 42 U.S.C. §§ 2000, et seq. (“Title VII). Plaintiff
further alleges both Oak Grove and PLC discriminated and retaliated against her

in the making and enforcement of her employment contract and employment
relationship in violation of 42 U.S.C. § 1981.
Now before the Court is Defendant PLC’s Motion to Dismiss Plaintiff’s First
Amended Complaint. (Doc. 17). Having considered the motions, pleadings, and
applicable law, the Court concludes Plaintiff has failed to state a claim against
PLC upon which relief may be granted. The Court accordingly GRANTS PLC’s
Motion to Dismiss.
I.

FACTURAL AND PROCEDURAL BACKGROUND
Plaintiff Tamar Brown, a black woman, began working for Defendant PLC

on August 28, 2020. (Am. Compl. ¶ 12). PLC is a third-party management
company. (Id. at ¶ 22). PLC hired Plaintiff as the Executive Director for one of the
assisted living facilities the company managed. (Id. at ¶ 12).
Plaintiff alleges that while employed by PLC, she was subjected to racially
motivated comments. For example, in December 2020, after requesting Heath
Reneau, a white employee, perform a task, Reneau remarked, “I’m sick of this
black bitch telling me what to do.” (Id. at ¶ 13). PLC terminated Reneau later that
month for poor work ethics. (Id. at ¶ 14). Plaintiff felt increased pressure as the
Executive Director after Reneau’s termination, particularly since Reneau’s wife
worked as PLC’s Director of Sales. (Id.).
Mark Starks, PLC’s Vice President of Operations, became Plaintiff’s direct
supervisor in January 2021. (Id. at ¶ 16). Plaintiff alleges she continued
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struggling with “racial insubordination” by other employees. (Id. at ¶ 17). Plaintiff
claims she found a letter written by Lindsay Clay, a white woman who served as
the Business Office Manager, stating Plaintiff “was hiring all black people.” (Id. at
¶¶ 17-18). Plaintiff alleges that rather than investigate Plaintiff’s complaint that
Clay made racist comments, PLC instead promoted Clay to Director of Sales. (Id.
at ¶ 19). Plaintiff, whose role as Executive Director included recommending
employees for vacant positions, did not believe Clay was qualified for the
promotion. (Id. ¶¶ 20-21).
In August 2021, the owner of the assisted living facility terminated its
contract with PLC. (Id. at ¶ 22). The owner of the facility informed staff members,
including Plaintiff, that they were employees of the facility and not the
management company. (Id. at ¶ 23). Jordan Cook, Divisional Director of
Operations for Defendant Oak Grove, visited the assisted living facility on
September 29, 2021. (Id. at ¶ 24). During his visit, Cook remarked to Plaintiff, “I
like your hair much better like that, that’s more the look.” (Id. at ¶ 25). Plaintiff
previously wore her hair in braids. (Id.). That day, she wore a straightened style.
(Id.). Cook’s remark made Plaintiff “feel violated as an African American
[w]oman.” (Id. at ¶ 26).
Oak Grove assumed management of the assisted living facility effective
October 1, 2021. (Id. at ¶ 28). Oak Grove informed all employees that they were

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on a 90-day probation period. (Id. at ¶ 29). Jordan Cook became Plaintiff’s
supervisor. (Id. at ¶ 30).
Soon thereafter, Plaintiff learned Lindsay Clay made false allegations
against Plaintiff to Bobby Petras, Oak Grove’s Chief Operating Officer, in an
effort to get Plaintiff terminated. (Id. at ¶ 31). In November 2021, Plaintiff
overheard Clay calling Plaintiff a “whore.” (Id. at ¶ 32). When Plaintiff confronted
Clay, Clay claimed, “I call everyone a whore.” (Id. at ¶ 33). On November 20,
2021, Plaintiff reported Clay to Jordan Cook for making racist comments and
engaging in other discriminatory conduct. (Id. at ¶ 34). Cook informed Plaintiff
that Clay reported her for bullying, a claim Plaintiff strongly refuted. (Id. at ¶ 35).
On December 28, 2021, Jordan Cook and Cindy Dotson, the Vice
President of Human Resources, met with Plaintiff. (Id. at ¶ 36). Cook and Dotson
reminded Plaintiff of her probationary status and then terminated her. (Id. at ¶ 3738). Cook and Dotson explained the decision to terminate Plaintiff’s employment
stemmed from her inability to communicate with others. (Id. at ¶ 38). They
described her as an “aggressive communicator.” (Id.). Plaintiff alleges Oak Grove
terminated her based on her race and in retaliation for reporting acts of
discrimination by other employees. (Id. at ¶¶ 39, 45).
Plaintiff filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on February 23, 2022, alleging Oak Grove
discriminated against her in violation of Title VII. (Id. at ¶ 1). The EEOC issued a
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Notice of Right to Sue on March 15, 2023. (Id. at ¶ 3). Plaintiff filed her Complaint
in this Court on June 5, 2023, alleging that PLC and Oak Grove discriminated
and retaliated against her based on her race in violation of Title VII and § 1981.
(Doc. 1). PLC moved to dismiss Plaintiff’s Complaint for failure to exhaust her
administrative remedies as to PLC and for failure to state a claim on July 7, 2023.
(Doc. 5). Plaintiff filed an Amended Complaint on July 27, 2023. (Doc. 11).
Plaintiff’s Amended Complaint eliminated any claims against PLC arising under
Title VII. Plaintiff’s remaining claims, which PLC now moves to dismiss, arise
exclusively under § 1981.
II.

MOTION TO DISMISS STANDARD
On a motion to dismiss, the Court must accept as true all well-pleaded

facts in a plaintiff’s complaint. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
(11th Cir. 2009). To avoid dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6), “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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is plausible where the plaintiff alleges factual content that “allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The plausibility standard requires that a plaintiff allege
sufficient facts “to raise a reasonable expectation that discovery will reveal
evidence” that supports a plaintiff’s claims. Twombly, 550 U.S. at 556.
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Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint
must contain “a short and plain statement of the claim showing that the pleading
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of this requirement is to
“give the defendant fair notice of what the ... claim is and the grounds upon which
it rests.” Twombly, 550 U.S. at 554-55 (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)) (internal quotation marks omitted) (alteration in original). “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff's obligation to provide the ‘grounds' of his
‘entitle[ment] to relief’ requires more than labels and conclusions.” Id. at 555
(citations omitted) (alterations in original). The complaint must contain enough
factual allegations to “raise a right to relief above the speculative level.” Id. at
555-56.
III.

DISCUSSION
A.

§ 1981 Race Discrimination

PLC moves to dismiss Count III of Plaintiff’s Amended Complaint, which
asserts a claim against PLC for race discrimination under § 1981. Section 1981
provides that all persons “shall have the same right in every State and Territory
to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C
§ 1981(a). This right extends to “the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.” 42 U.S.C. § 1981(b). “To state a claim
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of race discrimination under § 1981, a plaintiff must allege facts establishing: (1)
that [s]he is a member of a racial minority; (2) that the defendant intended to
discriminate on the basis of race; and (3) that the discrimination concerned one
or more of the activities enumerated in the statute.” Moore v. Grady Mem’l Hosp.
Corp., 834 F.3d 1168, 1171-72 (11th Cir. 2016).
Plaintiff’s Amended Complaint contains sufficient factual allegations to
satisfy the first and third elements of her prima facie case. The Amended
Complaint fails, however, to set forth facts establishing that PLC intentionally
discriminated against Plaintiff. A plaintiff may allege race discrimination through
either direct or circumstantial evidence. See Ziyadat v. Diamondrock Hosp. Co.,
3 F.4th 1291, 1296 (11th Cir. 2021) (citing Rioux v. City of Atlanta, 520 F.3d
1269, 1274 (11th Cir. 2008)). “Direct evidence is evidence that, if believed,
proves the existence of discriminatory intent without inference or presumption.”
Jefferson v. Sewon Am., Inc., 891 F.3d 911, 921 (11th Cir. 2018). “To be direct
evidence, the remark must indicate that the employment decision in question was
motivated by race.” Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223,
1227-28 (11th Cir. 2002). The Eleventh Circuit has explained that “only the most
blatant remarks, whose intent could be nothing other than to discriminate on the
protected classification” qualify as direct evidence of discrimination. Id. at 1227
(internal quotation marks and citation omitted). Further, “remarks by nondecisionmakers or remarks unrelated to the decisionmaking process itself are not
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evidence of discrimination.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318,
1330 (11th Cir. 1998); see also Trotter v. Bd. of Tr. of Univ. of Ala., 91 F.3d 1449,
1453-54 (11th Cir. 1996) (“For statements of discriminatory intent to constitute
direct evidence of discrimination, they must be made by a person involved in the
challenged decision.”).
Plaintiff points to two allegedly discriminatory statements directed toward
her during her employment with PLC. Plaintiff alleges that in December 2020,
Heath Reneau, a white employee, remarked, “I’m sick of this black bitch telling
me what to do.” (Am. Compl. ¶ 13). In early 2021, Plaintiff discovered a letter
written by Lindsay Clay, a white employee, accusing Plaintiff of “hiring all black
people.” (Id. at ¶ 18). Neither of these statements rises to the level of being an
“overt invocation of race.” Ziyadat, 3 F.4th at 1296 (explaining a claim of direct
racial discrimination may be established through allegations of “a racial slur or
racially charged language”). Plaintiff also does not allege that either Reneau or
Clay were involved in any decision by PLC involving Plaintiff’s employment.
These statements thus are not direct evidence of discrimination.
Plaintiff’s Amended Complaint also fails to set forth a claim of race
discrimination through circumstantial evidence. Where a plaintiff relies on
circumstantial evidence to establish racial discrimination under § 1981, the court
may assess the plaintiff’s claims using the same analytical framework articulated
for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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See Ziyadat, 3 F.4th at 1296 (citing Lewis v. City of Union City, Georgia, 918
F.3d 1213, 1220 n.5 (11th Cir. 2019) (en banc)). To state a claim of intentional
discrimination under § 1981, a plaintiff accordingly must show that “(1) [s]he is a
member of a protected class, (2) [s]he was qualified for the position, (3) [s]he
suffered an adverse employment action, and (4) [s]he was treated less favorably
than a similarly-situated individual outside h[er] protected class.” Rodemaker v.
Shumphard, 859 F. App’x 450, 451-52 (11th Cir. 2021) (citing Maynard v. Bd. of
Regents, 342 F.3d 1281, 1289 (11th Cir. 2003)). A § 1981 plaintiff further “must
initially plead and ultimately prove that, but for race, it would not have suffered
the loss of a legally protected right.” Comcast Corp. v. Nat’l Ass’n of Afr. Am.Owned Media, -- U.S. -- , 140 S. Ct. 1009, 1019 (2020).
The limited facts of Plaintiff’s Amended Complaint do not state a race
discrimination claim against PLC under § 1981. As PLC states, and Plaintiff does
not dispute, Plaintiff has not pled that she suffered an adverse employment
action while employed by PLC. Moreover, Plaintiff offers only a conclusory
statement that PLC has “never, on any other occasions, acted in a similar
manner with white former or current employees.” (Am. Compl. ¶ 68). This
statement alone falls far short of meeting the requirement that a plaintiff point to a
comparator of a different race who was “similarly situated in all material respects”
yet not subject to the same mistreatment. Lewis, 918 F.3d at 1229 (explaining
“similarly situated” to mean that the comparators engaged in the same essential
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conduct or misconduct, were subject to the same policy, worked under the same
supervisor, and had similarly work experience and disciplinary history”).
Plaintiff’s Amended Complaint accordingly fails to set forth facts sufficient
to establish a prima facie case of race discrimination under § 1981 against PLC.
The Court therefore GRANTS PLC’s motion to dismiss Plaintiff’s claim for race
discrimination.
B.

§ 1981 Retaliation

PLC next moves to dismiss Plaintiff’s § 1981 retaliation claim. Retaliation
claims are cognizable under § 1981 and are analyzed under the same framework
as Title VII claims. See CBOCS West v. Humphries, 553 U.S. 442, 452-57
(2008); Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1134 (11th Cir.
2020). To establish a prima facie case of retaliation, a plaintiff must show: “(1)
that [s]he engaged in statutorily protected expression; (2) that [s]he suffered an
adverse employment action; and (3) that there is some causal relationship
between the two events.” Johnson v. Miami-Dade Cnty., 948 F.3d 1318, 1325
(11th Cir. 2020).
Plaintiff alleges that she lodged a complaint with PLC after learning that
Lindsay Clay wrote a letter accusing Plaintiff of only hiring black people. (Am.
Compl. ¶¶ 18-19). For the purposes of this motion, the Court accepts Plaintiff’s
contention that her complaint constitutes a statutorily protected activity. Plaintiff’s
retaliation claim nevertheless fails as Plaintiff has not asserted that she suffered
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any adverse employment action by PLC. Plaintiff thus has failed to state a claim
of § 1981 retaliation. The Court accordingly GRANTS PLC’s motion to dismiss
Plaintiff’s retaliation claim.
IV.

CONCLUSION
For the reasons stated, the Court GRANTS Defendant PLC Employee II,

LLC’s Motion to Dismiss. (Doc. 11). Plaintiff’s claims against PLC are hereby
dismissed with prejudice.
The stay of discovery is lifted. Plaintiff and Defendant Southern Senior
Associates, LLC d/b/a The Residence at Oak Grove shall submit a proposed
scheduling and discovery order by not later than December 14, 2023.
SO ORDERED, this 14th day of November, 2023.
s/ Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE
aks

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