Wesolowski v. Napolitano

Filing 49

ORDER denying 32 Motion to Dismiss Plaintiff's Amended Complaint. Signed by Chief Judge Lisa G. Wood on 3/25/2013. (csr)

n the antab Otatto flttrttt Court
W the boutbern Jitrttt ot georgia
Jtunbiitk Athigton
CHRISTOPHER P. WESOLOWSKI,
Plaintiff,
vs.
JANET NAPOLITANO, Secretary, United
States Department of Homeland Security,
Defendant.

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CV 211-163

ORDER

Presently before the Court is a Motion to Dismiss
Plaintiff's Amended Complaint filed by Defendant Napolitano.
See Dkt. No. 32. For the reasons stated below, Defendant's
Motion is DENIED.
BACKGROUND

The present employment discrimination suit concerns
Wesolowski's employment as an instructor at the Federal Law
Enforcement Training Center ("FLETC"). See Dkt. No. 27.
According to Wesolowski's Amended Complaint, his Employer
retaliated against him in several employment decisions because
Wesolowski engaged in protected activity by complaining about
the "sex-stereotyping" Wesolowski endured for his failure to

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conform to traditional male grooming standards. See Dkt. No.
27, ¶I 18-21. Namely, Wesolowski wore an earring and had long
hair which he wore in a pony tail.
For purposes of this Motion, the facts are drawn
exclusively from the allegations in Wesoloswski's Complaint.
These allegations are assumed to be true. Weissman v. Nat'l
Ass'n of Sec. Dealers, Inc., 500 F.3d 1293, 1295-1296 (11th Cir.
2007) (stating that, in evaluating motions to dismiss, all
inferences are to be drawn in light most favorable to plaintiff
and all factual allegations are taken as true) . Wesolowski
alleges that, around February 2008, some of his co-workers began
ridiculing him about his personal appearance. Dkt. No. 27, ¶
18. Wesolowski notified his management chain, which included
Branch Chief Tony Lambraia and Division Chief Randy Melvin,
about the comments. Dkt. No. 27, ¶ 22. In response, Lambraia
and Melvin held a counseling session with Wesolowski and Tom
Crabill, the main perpetrator. Dkt. No. 27, ¶ 23. In
Wesolowski's opinion, this was a "weak attempt to stop the
behavior" as no discipline was taken against Crabill. Dkt. No.
27, ¶ 23.
Wesolowski also alleges that in April 2008, the same month
as the counseling session with Crabill, Wesolowski learned that
another colleague, Bob Pitchford, reported a "false rumor" to
the Chief Security Officer that Wesolowski was "holding himself
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out as an undercover agent for the Special Investigations
Division." Dkt. No. 27, ¶ 24. Although Wesolowski contends
this rumor was false, no disciplinary action was taken against
Pitchford. Dkt. No. 27, ¶ 29.
In June 2008, Wesolowski interviewed for a promotion to a
GS-13 Senior Instructor position ("the First Vacancy"). Dkt.
No. 27, ¶ 31. Among the other applicants were Crabill, Tony
Barber, and several candidates from outside the Tactics Branch.
Dkt. No. 27, ¶ 32. The interview panel included Lambraia,
Adrianna Rodinni, and Bill Mossburg with Melvin serving as the
selecting officer. Dkt. No. 27, ¶ 33. Wesolowski alleges that
Lambraia, Melvin, and Mossburg knew about Wesolowski's
opposition to his co-workers comments. Dkt. No. 27, ¶[ 34-35.
After interviews concluded, the panel ranked their top three
candidates. Dkt. No. 27, ¶ 36. Crabill was ranked first, with
Wesolowski ranked second, and Barber ranked third. Dkt. No. 27,
¶ 36. In July 2008, the panel formalized its recommendation to
hire Crabill for the First Vacancy. Dkt. No. 27, ¶ 33.
Wesolowski did not learn of Crabill's selection until
September 4, 2008. Dkt. No. 27, ¶ 52. Five days later, on
September 9, 2008, two new vacancies for positions identical to
the one Crabill was selected for were announced ("the Second and
Third Vacancies"). Dkt. No. 27, ¶ 75.

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3

The following week, on September 15, 2008, Wesolowski
contacted an Equal Employment Opportunity ("EEO") counselor.
Dkt. No. 27, ¶ 53. Three days later Humkey, the new Tactics
Branch Chief, "either encouraged or allowed" Pitchford to file a
"false" violence in the workplace complaint against Wesoiowski
based on a verbal altercation between the two employees. Dkt.
No. 27, ¶ 58. Pitchford's complaint was dismissed prior to any
investigation because of an audio tape that Wesolowski provided
of the actual exchange. Dkt. No. 27, ¶ 65. After reviewing
Wesolowski's tape, the applicable decision maker concluded that
no violence in the workplace had occurred. Dkt. No. 27, ¶ 65.
Seven days after Wesolowski contacted an EEO counselor, on
September 22, 2008, Wesolowski was allegedly "verbally accosted"
by Ron Rods, a Senior Instructor in the Tactics Branch and a
friend of Crabill and Pitchford. Dkt. No. 27, ¶ 69. Rods
interrupted Wesoiowski's class three times and yelled at
Wesolowski to "hurry up" and "knock off with all the built
stories." Dkt. No. 27, ¶ 70. Wesoiowski left his class to ask
Rods what he was doing, at which point, Rods began disparaging
Wesolowski's law enforcement background and teaching credentials
loudly enough for the students to hear. Dkt. No. 27, ¶ 71.
Humkey, Rods' superior, did not discipline Rods despite
confirming "that it was inappropriate and unprofessional" for
Rods to have spoken that way. Dkt. No. 27, ¶ 71.
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4

On September 30, 2008, Humkey was interviewed by the EEO
counselor regarding Wesolowski's EEO complaint. Dkt. No. 27, ¶
74. Around this same time frame, Humkey served as the
Recommending Official for the Second and Third Vacancies. Dkt.
No. 27, ¶ 72. Mossburg, who had served on the interview panel
for the First Vacancy, recommended that Humkey make his
selection based on the earlier roster. Dkt. No. 27, ¶ 76.
Humkey had not participated in the earlier selection because, as
of the First Selection, Humkey had not yet been appointed
Tactics Branch Chief. Dkt. No. 27, ¶ 58. Humkey opted to
conduct the entire application and interview process over to
fill the Second and Third Vacancies. Dkt. No. 27, 191 76-77.
Had Humkey used the existing roster, Wesolowski would have
automatically been promoted, as he was the next highest
candidate.
Instead, Barber and Donald Glisson were selected to fill
the Second and Third Vacancies. Dkt. No. 27, ¶ 80. Barber had
been ranked below Wesolowski after interviews for the First
Vacancy, which involved the same selection criteria. Dkt. No.
27, ¶ 81. FLETC's human resources department had found Glisson
to be ineligible for the First Vacancy for reasons not clear
from the Amended Complaint. Dkt. No. 27,

91 79. Wesolowski

contends that he was more qualified than either Barber or

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Glisson and that Humkey's explanation for his selections was
pretextual. Dkt. No. 27, ¶ 85.
Two months after Barber and Glisson were selected for the
Second and Third Vacancies, Wesolowski received an email from
Rods that was apparently intended for Humkey. Dkt. No. 27,
¶ 88. Rods claimed to have seen Wesolowski sitting down and
eating candy while conducting training. Dkt. No. 27, ¶ 88.
Wesolowski complained to Melvin, Wesolowski's second-level
superior, about the email. Dkt. No. 27, ¶ 89. Melvin told
Wesolowski that he had nothing to do with any of the Instructors
"spying" on Wesolowski, but admitted that it "kind of
agitat[ed]" him to know that Wesolowski might think he did.
Dkt. No. 27, ¶ 89. To Wesolowski's disappointment, Melvin
directed Wesolowski to confront Rods but did not otherwise
discipline Rods. Dkt. No. 27, ¶ 90.
Wesolowski decided that he could no longer tolerate the
hostility in the Tactics Branch and requested a transfer to
another division. Dkt. No. 27, ¶ 91. He was later transferred
to the Driver and Marine Division, where Wesolowski has
performed well and without incident. Dkt. No. 27, ¶I 92-95. On
March 13, 2011, Wesolowski was promoted to a GS-13 position,
which is the same level position as the First, Second, and Third
Vacancies. Dkt. No. 27, ¶ 95.

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After Wesolowski's EEO complaint was dismissed on July 5,
2011, Wesolowski filed the present suit in federal court. Dkt.
No. 27, ¶ 96. The Amended Complaint asserts three counts. In
Count I, Wesolowski seeks redress for alleged retaliation in
violation of Title Vii's opposition clause for not being
selected for the First Vacancy. See Dkt. No. 27. In Count II,
Wesolowski asserts that Defendant violated both the
participation and opposition clauses of Title VII by failing to
select him for either the Second or Third Vacancies. See Dkt.
No. 27. Count III alleges that Wesolowski suffered "other
materially adverse actions" which constituted retaliation under
Title VII. See Dkt. No. 27. Defendant seeks dismissal of all
three counts. Dkt. No. 32.
LEGAL STANDARD

Federal Rule of Civil Procedure 8(a) (2) requires that a
pleading contain a "short and plain statement of the claim
showing that the pleader is entitled to relief." The pleading
standard does not require "detailed factual allegations."
Ashcroft v. iqbal, 556 U.S. 662, 678 (2009). However, "[a]
pleading that offers 'labels and conclusions' or 'a formulaic
recitation of the elements of a cause of action will not do.'"
Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)) . In order to withstand a motion to dismiss under
Federal Rule of Civil Procedure 12(b) (6), "a complaint must
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contain sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'" Id. (quoting
Twombly, 550 U.S. at 570). A complaint is plausible on its face
when "the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id.
It is important to note that while the factual allegations
set forth in the complaint are to be considered as true at the
motion to dismiss stage, the same does not apply to legal
conclusions set forth in the complaint. Sinaltrainal v. CocaCola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (citing Iqbal,
129 S.Ct. at 1949) . "Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice." Iqbal, 129 S.Ct. at 1949. The court does not need to
"accept as true a legal conclusion couched as a factual
allegation." Twombly, 550 U.S. at 555.
DISCUSSION

As an initial matter, it is helpful to focus in on the
exact nature of the claims Wesolowski has chosen to pursue. All
of Wesolowski's claims concern retaliation, rather than
discrimination in the first instance. "When an individual is
subjected to reprisal because he has complained about . .
discrimination, the injury he suffers is not on account of his
[gender]; rather, it is the result of his conduct."
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GBOCS West

Inc. v. Humpries, 553 U.S. 442, 460 (2008) . Wesolowski seeks
redress not because Defendant discriminated against him based on
sexual stereotyping, but because allegedly he engaged in
protected activity. Additionally, as Wesolowski clarified in
his response to Defendant's Motion, Wesolowski is not asserting
any hostile work environment claims. See Dkt. No. 40 at 19.
I. Count I-Retaliation Based on the First Vacancy

Wesolowski's first count concerns his non-selection for the
First Vacancy, which he alleges was done in violation of Title
Vii's opposition clause. See Dkt. No. 27. The opposition
clause makes it unlawful for an employer to discriminate against
an employee "because he has opposed any practice made an
unlawful employment practice by [Subchapter VI] ." 42 U.S.C. §
2000e-3(a). At the time of the selection for the First Vacancy,
Wesolowski had opposed his colleagues' derogatory comments about
his appearance, but had not yet participated in the EEO process.
Thus, this first count is made only under the opposition clause
of § 2000e-3(a) and not the participation clause, which
prohibits discrimination because an employee "has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing

."

See 42 U.S.C.

§ 20003-3(a).
To establish his prima facie case for a retaliation claim
under Title VII, "the plaintiff must show that (1) []he engaged
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in statutorily protected activity, (2) an adverse employment
action occurred, and (3) the adverse action was causally related
to plaintiff's protected activities." Little v. United
Technologies, Carrier Transicold Div., 103 F.3d 956, 959 (11th
Cir. 1997) . For claims based on the opposition clause, a
plaintiff must also establish "that he had a good faith,
reasonable belief that the employer was engaged in unlawful
employment practices." Id. at 960. This requirement contains
both a subjective and objective component;
not only show that he subjectively

"[a] plaintiff must

(that is, in good faith)

believed that his employer was engaged in unlawful employment
practices, but also that his belief was objectively reasonable
in light of the facts and record presented." Id. (emphasis in
original).
Wesolowski has sufficiently alleged that he engaged in
statutorily protected activity. Wesolowski notified his
managers, Lambraia and Melvin, that he was being subjected to
ridicule due to "sex stereotyping" by his co-worker, Crabill.
Dkt. No. 27, ¶ 99.

Nothing in the Complaint suggests

Wesolowski's opposition was not in good faith. At the time of
his first complaint to management in April of 2008, the First
Vacancy had yet to be announced, thus Wesolowski had no reason
to "insulate" himself and sow the seeds of a retaliation claim
as Defendant suggests.
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10

Additionally, from the basis of the Amended Complaint,
Wesolowski's good faith belief was objectively reasonable in
light of the fact that numerous courts across the country have
held that comments based on a plaintiff's failure to conform to
sexual stereotypes are actionable under Title VII. See Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), abrogated by statute
on other grounds as recognized by Landraf v.

usi Film Products,

551 U.S. 244, 251 (1994); Glenn v. Bumbry, 663 F.3d 1312, 131719 (11th Cir. 2011) (surveying sexual stereotyping cases); Lewis
v. Heartland Inns of Am., LLC, 591 F.3d 1033, 1038 (8th Cir.
2010) (recognizing the continuing validity of Price Waterhouse's
sexual stereotyping holding); Nichols v. Azteca Rest. Enters.
Inc., 256 F.3d 864, 874 (9th Cir. 2001) (waiter that was
harassed by his co-workers for carrying a serving tray "like a
woman" stated a claim for sexual harassment under Title VII
because his antagonists were animated by his gendernonconforming behavior.)
Furthermore, for a retaliation claim, the plaintiff need
not prove that the employment practice, here sex-stereotyping
based on long hair and an earring, is in fact unlawful, only
that he had a reasonable good faith belief that it was. See
Little, 103 F.3d at 960 ("A plaintiff, therefore, need not prove
the underlying discriminatory conduct that he opposed was
actually unlawful in order to establish a prima facie case and
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overcome a motion for summary judgment."); Parker v. Bailtimore
& O.R.Co., 652 F.2d 1012, 1020 (D.C. Cir. 1981) (even if
plaintiff's opposition was based on a mistake of law or fact, he
still can succeed on an opposition clause claim)
Wesolowski has also sufficiently alleged that an adverse
employment action occurred, namely that he was passed over for a
promotion during the First Vacancy selection.

"[G]enerally the

denial of a promotion is an adverse employment action."
Pennington v. City of Huntsville, Ala., 261 F.3d 1262, 1267
(11th Cir. 2001) (citing Walker v. Mortharn, 158 F.3d 1177, 1187
(11th Cir. 1998)).
Finally, Wesolowski has sufficiently alleged causation to
survive a motion to dismiss. Defendant's decision to hire
Crabill for the First Vacancy occurred just two months after
Wesolowski's opposition. See Dkt. No. 27, 91 99. Three of the
four decision-makers were aware of Wesolowski's protected
conduct. Dkt. No. 27, 191 34-35. Additionally, one of the
members of the interview panel stated that Wesolowski "had
virtually no chance to be selected for the position over
Crabill" because Crabill had participated in the Active Shooter
Program, a program which Wesolowski had sought to participate
in, but had been denied by Lambraia, one of the interview panel
members. See Dkt. No. 27, ¶ 51.

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In sum, Count I of Wesolowski's Amended Complaint should
not be dismissed at this time.
II. Count 11-Retaliation Based on the Second and Third Vacancies

Count II differs from Count I in that, as of the time of
the Second and Third Vacancies, Wesolowski had initiated EEO
proceedings. Wesolowski contacted an EEO counselor on September
15, 2008 and Barber and Glisson were not selected for the Second
and Third Vacancies until October 17, 2008. Dkt. No. 27, 191 74,
87. While Wesolowski's formal EEO complaint was not filed until
October 27, 2008, the EEO counseling was sufficient to trigger
the protection of the participation clause. See Hashimoto v.
Dalton, 118 F.3d 671, 680 (9th Cir. 1997) ("Under the
participation clause . . . there can be little doubt that [the
plaintiff's] visit with the EEO counselor constituted
participation 'in the machinery set up by Title VII.'"); Booker
V.

Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1312

(6th Cir. 1989) ("The 'exceptionally broad protection' of the
participation clause extends to persons who have 'participated
in any manner' in Title VII proceedings.") (citations omitted);
Eastland v. Tenn. Valley Auth., 704 F.2d 612, 627 (11th Cir.
1983) (concluding that "contact with the EEO counselor was
itself 'protected activity'"); Gonzalez v. Bolger, 486 F. Supp.
595, 601 (D.C.C. 1980), aff'd 656 F.2d 899 (D.C. Cir. 1981)
("Once plaintiff, acting for himself or as a representative,
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initiates pre-complaint contact with an EEO counselor . . . he
is participating in a Title VII proceeding.") (citation
omitted).
The fact that Count II arises under the participation
clause is significant. While a plaintiff must demonstrate that
he had a reasonable good faith belief for opposition clause
activity, there is no such requirement for participation clause
activity. This stems from the different purposes served by the
opposition clause and the participation clause. See Merritt v.
Dillard Paper Co., 120 F.3d 1181, 1187 (11th Cir. 1997) ("The
opposition clause by its very nature focuses upon the motive of
the employee, covering only one who 'has opposed' any practice
which violates Title VII. By contract, the participation clause
is not so limited."); Booker, 879 F.2d at 1312 (explaining
how the participation clause provides wider and stronger
protection than the opposition clause); Sias v. Cit
Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978) ("The
considerations controlling the interpretation of the opposition
clause are not entirely the same as those applying to the
participation clause" because "[t]he purpose of the latter is to
protect the employee who utilizes the tools advanced by Congress
to protect his rights.")
Defendant urges this Court to extend the opposition
clause's reasonable good faith requirement to the participation
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II
II

14

clause either for all participants in EEO activity or solely for
participants who were assisted by counsel in the EEO
proceedings. See Dkt. Nos. 32, 42. This Court declines to do
so because such an extension would be inconsistent with
applicable case law and inconsistent with the EEOC guidelines.
In addressing this issue, the First, Third, Sixth, Eight,
and Ninth Circuits have held that a participation clause
plaintiff is not required to have had a reasonable basis for the
EEOC charge or to have made the charge in good faith. See
Slagle v. Cnty. of Clarion, 435 F.3d 262 (3d Cir. 2006) (citing
case law and the EEOC Compliance Manual for the proposition
"that a plaintiff is protected under the participation clause
'regardless of whether the allegations in the original charge
were valid or reasonable'"); Johnson v. Univ. of Cincinnati, 215
F.3d 561 (6th Cir. 2000) (stating that the participation
clause's protections "are not lost if the employee is wrong on
the merits of the charge" or even "if the contents of the charge
are malicious or defamatory"); Brower v. Runyon, 178 F.3d 1002,
1006 (8th Cir. 1999) ("The underlying charge need not be
meritorious for related activity to be protected under the
participation clause.") (citations omitted); Wyatt v. City of
Boston, 35 F.3d 13, 15 (1st Cir. 1994) ("As for the
participation clause, 'there is nothing in its wording requiring
that the charges be valid, nor even an implied requirement that
15
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they be reasonable.") (citations omitted); Sias, 588 F.2d at 695
(stating that it is "well settled" that the participation clause
protects an employee regardless of the merits of his or her EEOC
charge); Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1007
(5th Cir. 1969) (fact that employee made false and malicious
statements in the EEOC charge is irrelevant). The Seventh
Circuit, in contrast, has required that a participation clause
plaintiff demonstrate that his EEO complaint was not "utterly
baseless." Mattson v. Caterpillar, Inc., 359 F.3d 885 (7th Cir.
2004)
The Eleventh Circuit has specifically reserved ruling on
this issue. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1452,
1455 (11th Cir. 1998) (per curiam) ("[W]e need not decide
whether protection from retaliation under the participation
clause is conditioned by a good faith, reasonable basis
requirement.") . Prior to the creation of the Eleventh Circuit,
the Fifth Circuit addressed this issue and decided in Pettway
that an employee's basis, or lack thereof, for filing an EEO
complaint is irrelevant in evaluating a retaliation claim.
Banner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir.
1981) (adopting all Fifth Circuit opinions handed down prior to
close of business on September 30, 1981 as binding precedent);
Pettway, 411 F.2d at 1007. Absent a decision to the contrary

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from the Eleventh Circuit, this Court will follow Pettway and
the clear majority rule.
Additionally, the EEOC Compliance Manual makes a clear
distinction between opposition and participation, requiring a
reasonable good faith belief for the former and explicitly not
requiring that for the latter. The Compliance Manual states:
An individual is protected from retaliation
for opposition to discrimination as long as
s/he had a reasonable good faith belief that
s/he was opposing an unlawful discriminatory
practice, and the manner of opposition was
reasonable. An individual is protected
against retaliation for participation in the
charge process, however, regardless of the
validity or reasonableness of the original
allegation of discrimination.
EEOC Compliance Manual, § 2-Il (A) (5) (2009) . EEOC Guidelines,
"while not controlling upon the courts by reason of their
authority, do constitute a body of experience and informed
judgment to which the courts and litigants may properly resort
for guidance." Mentor Say. Bank, FSB v. Vinson, 477 U.S. 57,
65 (1986) (citing Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 14142 (1976)) . This Court declines to adopt a reasonable good
faith requirement for participation clause claims in light of
these authorities.
As discussed above, Wesolowski's failure to receive a
promotion constitutes an adverse employment action. Wesolowski
has also sufficient alleged a causal connection based on the

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II

I

17

following facts: Humkey, prior to the selections, had been
interviewed regarding the EEO complaint; Humkey specifically
chose not reuse the roster compiled for the First Vacancy, which
would have meant automatic selection for Wesolowski; the hiring
of Glisson and Barber occurred approximately a month after
Wesolowski contacted an EEO counselor; Barber, who was selected
rather than Wesolowski, had marked lower than Wesolowski for the
First Vacancy selection; and human resources just a few months
earlier had determined Glisson to be ineligible for the First
Vacancy, yet he received the promotion over Wesolowski. The
Amended Complaint sufficiently alleges, with reference to
specific facts, that Wesolowski's participation in EEO
proceedings caused him to be passed over by less qualified
candidates for the Second and Third Vacancies.
III. Count 111-Other Materially Adverse Actions

Wesolowski has identified the following alleged conduct as
the basis for his final count: (1) the false violence report
made by Wesolowski's colleague, Pitchford, and his manager,
Humkey, to the Chief Security Officer at FLETC claiming that
Wesolowski had committed violence at the workplace, "a charge
that, if proven, would all but ruin [Wesolowski's] career in law
enforcement;" (2) Wesolowski's managers, including Lambraia,
allowing another tactics instructor, Rods, to berate and
belittle Wesolowski in front of students; and (3) Wesolowski's
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ft
ii

18

managers failure to discipline Rods for his behavior. Dkt. No.
27, ¶ 123.
As discussed previously, to state a retaliation claim, a
plaintiff must show that he suffered an adverse employment
action. See Wideman, 141 F.3d at 1454. For a retaliation
claim, an action is considered materially adverse and sufficient
to support a claim if it "might have dissuaded a reasonable
worker from making or supporting a charge of discrimination."
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006); Crawford v. Caroll, 529 F.3d 961, 973 (11th Cir. 2008)
(finding that the Supreme Court's decision in Burlington
"broadened" the type of employer conduct actionable in a
retaliation claim) . "Although 'Title VII'S protection against
retaliatory discrimination extends to adverse action which fall
short of ultimate employment decisions,' the plaintiff must
still demonstrate 'some threshold level of substantiality.'"
Cotton v. Cracker Barrel Old Country Store,Inc., 434 F.3d 1227,
1233 (11th Cir. 2006) (citing Wideman, 141 F.3d at 1456).
Courts "look to the 'totality of the alleged reprisals' to
determine whether this burden has been met." Id. The actions
are to be considered collectively; thus, even if an action on
its own would not constitute an adverse employment action, when
combined with the "total weight" of the actions, the plaintiff's

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19

h

burden may be met. See Shannon v. Bellsouth Tellcomms., Inc.,
292 F.3d 712, 716 (11th Cir. 2002).
At this early stage in the litigation, it is still
plausible for Plaintiff to prove that Hurnkey, Wesolowski's
manager, pushed Rods to file the false violence in the workplace
complaint against Wesolowski despite it being apparent to Humkey
that such a complaint was not warranted. The Amended Complaint
alleges that Pitchford admitted that he "really didn't think a
whole lot about" the verbal exchange that served as the basis of
the complaint and that Pitchford filed the complaint only as a
result of Humkey's suggestion. See Dkt. No. 27, IT 59-61.
Humkey and Pitchford may have different recollections of the
event, and each may suggest that it was the other who raised the
idea of filing a complaint. See Dkt. No. 27, ¶ 61. The Amended
Complaint contains sufficient facts to make it plausible that
the false violence in the workplace claim was filed at the
behest of Humkey to retaliate against Wesolowski's protected
activity.
Had the charge been sustained, Wesolowski alleges that he
would have likely lost his job and it "would [have] all but
ruin[ed] [his] career in law enforcement." Dkt. No. 27, ¶ 66,
123. The false filing of such a complaint would very likely
dissuade any reasonable employee from pursuing an EEOC
complaint. See Crawford, 529 F.3d at 974 (holding that
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20

plaintiff suffered materially adverse action within meaning of
Title Vii's retaliation provision because of an unfavorable
performance review that directly affected eligibility for merit
pay increase).
Defendant argues that "FLETC had a policy regarding
workplace violence which requires the reporting of even rumors
of such an incident." Dkt. No. 32 at 43. Defendant contends
that "{a]s a supervisor apprised of such an accident, it was
Humkey's duty to report it." Dkt. No. 32 at 43. FLETC's
policy, however, is not referenced or attached to the Amended
Complaint. "A court is generally limited to reviewing what is
within the four corners of the complaint on a motion to
dismiss." Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1329 n.7
(11th Cir. 2006) . At this juncture, this Court is not
determining that FLETC's policy could not support a summary
judgment motion, only that it cannot support dismissal. See
Cotton, 434 F.3d at 1234 (enforcement of internal policy without
evidence of selective enforcement is not an adverse action).
Indeed, in denying the Motion to Dismiss, the Court in no way
adopts any of the allegations in the Amended Complaint as its
own or signals that the case will or will not survive a motion
for summary judgment.
The Amended Complaint also sufficiently alleges a causal
connection between the adverse actions and Wesolowski's
AO 72A
(Rev. 8/82)

21

protected activity. The false violence complaint occurred a
mere three days after Wesolowski had contacted an EEO counselor.
Thus, this Court cannot determine based on the Amended Complaint
that the two events were "wholly unrelated." McCann v. Tillman
526 F.3d 1370, 1376 (11th Cir. 2008)

.

Dismissal of Count III is

therefore inappropriate.
CONCLUSION

Defendant's Motion to Dismiss Plaintiff's Amended
Complaint, Dkt. No. 32, is DENIED.

SO ORDERED, this 25th day of March, 2013.

01

~

L SA GODSEY W OD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

22
AO 72A
(Rev. 8/82)