Ward v. Glynn County Board of Commissioners
Filing
29
ORDER granting in part and denying in part 11 Motion to Dismiss; dismissing as moot 18 Motion to Dismiss. Accordingly, Plaintiff's Section 1981 claims against Defendant are hereby DISMISSED, but her Title VII claims remain viable at this time. Signed by Chief Judge Lisa G. Wood on 8/11/2016. (csr)
3ht the Eniteb .4tatto Ditrftt Court
for the boutbern 3itritt of georgia
Orunol"t'd 3whoton
YOLONDA WARD,
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Plaintiff,
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V.
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GLYNN COUNTY BOARD OF
COMMISSIONERS,
Defendant.
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CV 215-077
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ORDER
This matter comes before the Court on two fully-briefed
Motions to Dismiss filed by Defendant Glynn County Board of
Commissioners ("Defendant"). See Dkt. Nos. 11, 16, 18, 20. For
the reasons set forth below, Defendant's first Motion to Dismiss
(dkt. no. 11) is GRANTED in part and DENIED in part as follows:
the Motion is GRANTED as to its request for a dismissal of
Plaintiff's claims in counts three and four of the Amended
Complaint; it is DENIED to the extent that it seeks a dismissal
of all claims for insufficient service of process; and it is
DENIED insofar as it requests a dismissal of Plaintiff's claims
in counts one and two. Defendant's second Motion to Dismiss
(dkt. no. 18) is DISMISSED as moot.
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FACTUAL BACKGROUND
Plaintiff Yolonda Ward ("Plaintiff") began working at the
Glynn County Property Appraisal Office (the "Property Appraisal
Office") in Glynn County, Georgia, in 2000. Dkt. No. 7 (Amended
Complaint, hereinafter "Am. Compl."), ¶91 5-6, 11. While
Plaintiff initially held the position of Cashier/Clerk, she
moved to Certified Appraiser in 2004. See id. at 191 11-12; Dkt.
No. 11, Ex. A. Plaintiff, who is African American, was one of
few African American employees in the Property Appraisal Office.
Am. Compi., ¶ 12.
Defendant is the local governing authority of Glynn County.
Id. at ¶ 6. The Property Appraisal Office is a department
within the Glynn County government and is responsible for
appraising and revaluing property in the county. Id. at ¶91 6,
12.
I. Alleged Events in the Workplace
On April 2, 2009, three of Plaintiff's Caucasian coworkers—
one of whom is named Carrie Smith ("Smith")—notified Plaintiff
that they had "something" to give to her. Id. at ¶ 14.
According to Plaintiff, her coworkers handed her "a porcelain
white Santa Claus figurine with its face colored black." Id. at
91 15. Plaintiff alleges that her coworkers laughed as they left
the figurine on her desk, much to her surprise and humiliation.
Id. at 191 16-17.
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In early May 2009, the Chief Appraiser, Robert Gerhardt
("Gerhardt"), reassigned Smith and another Caucasian employee to
assist the office's Data Analyst Supervisor. Id. at ¶ 18.
Plaintiff and another African American employee subsequently met
with Gerhardt to discuss their coworkers' reassignment. Id. at
¶ 19. The two inquired as to why their coworkers were
reassigned to work with the Data Analyst Supervisor when
Gerhardt knew that they were interested in and qualified for the
positions. Id. Gerhardt did not provide any explanation for
his decision. Id. at ¶ 20.
Plaintiff then met with the Director of Human Resources,
Orah Reed ("Reed"), on May 15, 2009. Id. at ¶ 21. Plaintiff
showed Reed the black-faced figurine and informed her of her
conversation with Gerhardt. Id. Reed called Smith into her
office, at which time Smith apologized for her conduct. Id. at
¶ 22. Reed then summoned Gerhardt, who replied that he would
speak to Smith about the incident but, according to Plaintiff,
never took any disciplinary action against Smith or otherwise
apologized to Plaintiff at any time.
Id. at ¶I 23-26.
Plaintiff filed a grievance against Smith and Gerhardt in
June 2009, based on their allegedly racist behavior in these
instances. Id. at ¶ 27. Plaintiff's grievance also complained
that Gerhardt had called another African American employee by
the nickname "Ms. Thang." Id. at ¶ 28. Plaintiff maintains
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that the nickname was "extremely inappropriate and offensive,"
as it is slang for "a haughty woman (especially a woman of
color)." Id.
In October 2009, there was an opening for the Data Analyst
Supervisor position, and Defendant offered the position to
Smith. Id. at ¶ 29. When Smith rejected the promotion,
Gerhardt extended the offer to Plaintiff, who accepted. Id. at
191 30-31. Plaintiff alleges that all of the previous data
analyst supervisors had overseen and were supported by two data
entry employees, but that Gerhardt, upon Plaintiff's acceptance
of this position, reclassified the position as nonsupervisory
and assigned the existing data entry employees to new jobs. Id.
at ¶91 32-33. Plaintiff also was reassigned to another office
known as "the closet." Id. at 91 35.
On three occasions that month, Plaintiff met with one or
more of her superiors—including Gerhardt; Deputy Chief Cary
Carter ("Carter"); and her direct supervisor, Andrea Reichenbach
("Reichenbach")—to discuss who would be assisting her with the
data entry and what training she would receive for her new
position. Id. at 191 36, 40, 43. Plaintiff asserts that her
supervisors ignored her requests for assistance and never
trained her for her new position. Id. at 591 37, 39, 42.'
1
Plaintiff notes that Gerhardt allowed her to have one individual
help her enter data once a week, but nevertheless maintains that she
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According to Plaintiff, she was required to perform all of the
data entry herself while learning how to operate a new data
system and finishing work from her previous position that
remained outstanding. Id. at 191 38, 41. Plaintiff believes
that Gerhardt and Reichenbach set her up to fail. Id. at ¶ 47.
Unable to fulfill her duties without assistance or
training, Plaintiff states that she resigned from the Data
Analyst position and returned to her former position on October
27, 2009. Id. at 9191 48 - 49; Dkt. No. 11, Ex. A. 2 In December of
that year, one of Plaintiff's Caucasian coworkers, Jamie Corner
("Corner"), was promoted to Data Analyst, and Gerhardt restored
the two data entry assistant positions, and created another
assistant position, to support Corner in this role. Am. Compl.,
9191 50-52. In addition to Corner's three-person support staff,
Reichenbach sent an E-mail in February 2010 notifying the
appraisers that they could "all help with data entry," and
Gerhardt subsequently announced that even more personnel would
be working in data entry in the following year. Id. at ¶ 53,
"needed the assistance of at least two full-time employees, like her
Caucasian predecessors had received." Am. Compi., 9191 44-45.
2
The Amended Complaint alleges that Plaintiff stepped down from the
Data Analyst position on October 28, 2009, am. compi., IT 48-49, while
her administrative charge indicates that this event occurred the day
before, on October 27, 2009, dkt. no. 11, ex. A. For the purposes of
ruling on the instant Motions, the Court will rely on the date set
forth in the administrative filing.
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In February 2010, Carter gave Plaintiff and another African
American employee their performance evaluations. Id. at ¶ 54.
Plaintiff found this unusual, as their immediate supervisor,
Reichenbach, had completed their reviews in the past and was
doing so for Caucasian employees around this time. Id. at ¶I
54-55, 57. According to Plaintiff, Reichenbach refused to
complete their evaluations, and, therefore, Plaintiff and her
African American coworker reported this to Human Resources on
March 5, 2010, as an incident of discrimination. Id. at ¶I 5556.
Plaintiff alleges that she suffered "extreme stress" as a
result of seeing her successor to the Data Analyst position,
Corner, receive the exact type of assistance that had been
withheld from her during her tenure. Id. at ¶ 58. She began to
"experience her heart racing and episodes of crying." Id. at ¶
59. Plaintiff sought medical care to cope with the stress of
her work environment. Id.
II. Plaintiff's Administrative Charge
On April 9, 2010, Plaintiff filed a charge of
discrimination against her employer with the Equal Employment
Opportunity Commission (the "EEOC"). Id. at ¶ 7; Dkt. No. 11,
Ex. A. On the EEOC standard charge form—which requires a
complainant to identify the type or types of discrimination
alleged, such as race discrimination or retaliation—Plaintiff
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marked- only the box labeled "race." Dkt. No. 11, Ex. A.
Plaintiff indicated that the alleged discrimination took place
on October 27, 2009, and she left blank the box in which to
designate the discrimination as a "continuing action." Id.
Plaintiff described the allegedly discriminatory acts of
her employer in the administrative charge as follows:
I.
. . . . On October 27, 2009, I stepped down
from my [Data Analyst] position after the persons
who were assigned to help the previous Caucasian
[employee] in the position were reassigned to
other positions in the office[,] leaving me to
have to do all the work and also all the duties
of my previous job. I was also required to give
up my office location, which is assigned
according to seniority[,] to another person who
had less seniority than [me]. After I stepped
down from my position[,] the Caucasian who was
given the position was also given help for the
position.
II.
Chief Appraiser, . . . Gerhardt, told me the
people were needed to be put into the field to
collect data. No reason was given as to why I
had to give up my office.
III. I believe I have been discriminated against
because of my race, African American, in
violation of Title VII of the Civil Rights Act of
1964, as amended.
Id.
Plaintiff alleges that on February 19, 2014, "the EEOC'S
Atlanta District Office issued a determination finding probable
cause that Defendant discriminated against [her] because of her
race . . . and retaliated against her for opposing its unlawful
employment practices." Am. Compi., ¶ 8. The EEOC referred the
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matter to the Department of Justice (the "DOJ"). Id. at ¶ 9.
In a letter dated March 27, 2015, the DOJ notified Plaintiff of
her right to file suit on her claims within ninety days. Id. at
¶ 10.3
PROCEDURAL BACKGROUND
Plaintiff filed a Complaint against Defendant in this Court
on June 25, 2015. Dkt. No. 1. Plaintiff also submitted a
Summons for the Clerk of Court's signature that was directed to
the Glynn County Attorney at his business address. Dkt. No. 4.
Before serving Defendant with the Complaint and Summons,
however, Plaintiff filed an Amended Complaint on October 14,
2015, which sets forth the same factual allegations and causes
of action as the original Complaint but with greater clarity.
See Dkt. No. 7. The Clerk of Court executed another Summons,
though this time directed to Defendant "care of" the Glynn
County Attorney at his business address. Dkt. No. 9.
I. Plaintiff's Causes of Action
In count one of the Amended Complaint, Plaintiff claims
race discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title
VII"). Mt. Compl., ¶I 62-70. In particular, Plaintiff alleges
that Defendant denied her the same promotional opportunities
Plaintiff has not filed copies of the correspondence relating to the
EEOC or DOJ investigations but asserts that she can do so at the
Court's request. Dkt. No. 16, p. 15 n.2.
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M.
available to Caucasian employees. Id. at IT 62-64. Plaintiff
also contends that Defendant created a hostile work environment
by failing to take corrective action after learning that
employees were harassing and discriminating against Plaintiff,
and that Plaintiff was unable to perform her job duties as a
result. Id. at ¶91 64-69.
Plaintiff's count two alleges that Defendant retaliated
against her in violation of Title VII. Id. at ¶91 71-76.
According to the Amended Complaint, Plaintiff engaged in
protected activity when she reported racial harassment, such as
when she informed Human Resources about the incident involving
the black-faced Santa Claus figurine. Id. at ¶ 73. Plaintiff
avers that Defendant then subjected her to adverse employment
actions in "removing the tools and assistance required to do her
job" in the Data Analyst position and thus forcing her to resign
from the position. Id. at 91 74.
Counts three and four set forth causes of action pursuant
to 42 U.S.C. § 1981 ("Section 1981") based on the same
allegations of race discrimination and retaliation,
respectively, in counts one and two. Id. at 191 77-84. In each
count of the Amended Complaint, Plaintiff states that
Defendant's conduct has caused her to suffer "loss of pay and
benefits, . . . diminished future earning capacity, emotional
pain and suffering, inconvenience, mental anguish, loss of
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enjoyment of life, and other pecuniary and nonpecuniary losses."
Id. at ¶T 70, 76, 80, 84. Plaintiff seeks an award of lost
wages, compensatory damages of not less than $100,000, and
attorney's fees and litigation costs. Id. at ¶I c-e.
II. Plaintiff's Attempts to Serve Defendant and Defendant's
Motions in Response
Plaintiff never attempted to serve Defendant with notice of
this action prior to filing the Amended Complaint. See Dkt. No.
11-1, p. 5; Dkt. No. 16, p. 2. After filing the Amended
Complaint, Plaintiff served a copy of the same and the related
Summons on the Glynn County Attorney on October 21, 2015. Dkt.
No. 10. On November 12, 2015, Defendant filed the instant
Motion to Dismiss the Amended Complaint, dkt. no. 11, as well as
an Answer, dkt. no. 12.
Defendant's Motion and Answer raise
defenses based on Plaintiff's service of process on the Glynn
County Attorney, the legal sufficiency of her claims to relief,
her exhaustion of administrative remedies, and her compliance
with the statute of limitations. Dkt. No. 11-1,
pp. 5-13; Dkt.
No. 12, p. 3.
On November 18, 2015, Plaintiff served copies of the
Complaint, Amended Complaint, and the later-issued Summons on
the Glynn County Administrator, as well as Defendant's Chairman.
' The docket of this case reflects that Defendant submitted the Motion
to Dismiss at 4:28 PM, dkt. no. 11, and the Answer at 4:30 PM, dkt.
no. 12.
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Dkt. Nos. 13-15. Defendant then filed the now-pending Motion to
Dismiss the Complaint and, in doing so, consolidated its
briefing in support of the Motion with that intended as a Reply
to the Motion to Dismiss the Amended Complaint. Dkt. No. 18.
These Motions are now ripe for review.
LEGAL STANDARDS
Federal Rule of Civil Procedure 8(a) requires that a
plaintiff's complaint contain both "a short and plain statement
of the grounds for the court's jurisdiction" and "a short and
plain statement of the claim showing that the pleader is
entitled to relief." Fed. R. Civ. P. 8(a) (1)-(2). The
complaint must be properly served along with a summons upon the
defendant. Fed. R. Civ. P. 4(c). As such, a defendant may
respond to the complaint by moving for its dismissal pursuant to
Federal Rule of Civil Procedure 12(b) ("Rule 12(b)") for
insufficient process, insufficient service of process, or
failure to state a claim upon which relief may be granted. Fed.
R. Civ. P. 12(b) (4)-(6)
I. Service of Process
When a defendant challenges service of process, the
plaintiff bears the burden of establishing its validity.
While Plaintiff filed Affidavits stating that she had served the
Glynn County Manager and Defendant's Chairman, see dkt. nos. 13-15,
Defendant's briefing on the instant Motions reveals that the
individual whom Plaintiff identifies as the Glynn County Manager is,
in fact, the Glynn County Administrator, see dkt. no. 18, p. 6.
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Familia De Boom v. Arosa Mercantil, S.A., 629 F.2d 1134, 1139
(5th Cir. 1980) (citing 5 Wright & Miller, Federal Practice and
Procedure § 1353 (1969)).6 In determining whether the plaintiff
meets her burden, a court must apply the standards of proof
applicable to motions to dismiss for lack of personal
jurisdiction. Karnmona v. Onteco Corp., 587 F. App'x 575, 578
(11th Cir. 2014) (citing Lowdon PTY Ltd. v. Westminster
Ceramics, LLC, 534 F. Supp. 2d 1354, 1360 (N.D. Ga. 2008), and
Baragona v. Kuwait Gulf Link Transp. Co., 594 F.3d 852, 855
(11th Cir. 2010)). When a district court does not conduct an
evidentiary hearing, the plaintiff need only allege sufficient
facts in the complaint to establish a prima facie case of
personal jurisdiction over a nonresident defendant. Cable/Home
Coinmc'n Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11th
Cir. 1990) (citing Morris v. SSE, Inc., 843 F.2d 489, 492 (11th
Cir. 1988), and Delong Equip. Co. v. Wash. Mills Abrasive Co.,
840 F.2d 843, 845 (11th Cir. 1988)).
However, if the defendant challenges personal jurisdiction
with affidavit evidence in support of his position, "the burden
traditionally shifts back to the plaintiff to produce evidence
supporting jurisdiction." Diamond Crystal Brands, Inc. v. Food
6
In Bonner v. City of Prichard, the Eleventh Circuit Court of Appeals
adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to October 1, 1981. 661 F.2d 1206, 1207 (11th Cir.
1981)
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Movers Int'l, Inc., 593 F.3d 1249, 1257 (11th Cir. 2010)
(quoting United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th
Cir. 2009)). The plaintiff must "substantiate the
jurisdictional allegations in the complaint by affidavits or
other competent proof, and not merely reiterate the factual
allegations in the complaint." Polski Linie Oceariiczne v.
Seasafe Transp. A/S, 795 F.2d 968, 972 (11th Cir. 1986) (quoting
Bloom v. A.H. Pond Co., 519 F. Supp. 1162, 1168 (S.D. Fla.
1981))
The court, in turn, must accept the facts in the
plaintiff's complaint as true, to the extent that they remain
uncontroverted by the defendant's affidavits. Cable/Home
Coininc'n Corp., 902 F.2d at 855. In addition,
"[w]here the
plaintiff's complaint and supporting evidence conflict with the
defendant's affidavits, the court must construe all reasonable
inferences in favor of the plaintiff." Diamond Crystal Brands,
Inc., 593 F.3d at 1257 (quoting Meier ex rel. Meier v. Sun Int'l
Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002)).
II. Statement of a Claim to Relief
A motion to dismiss for failure to state a claim challenges
the legal sufficiency of the complaint. See Fed. R. Civ. P.
12(b) (6). While the complaint need not contain detailed factual
allegations, it nevertheless "must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is
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plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570
(2007)) (interpreting Fed. R. Civ. P. 8(a) (2)) . Facial
plausibility requires that the complaint set forth enough facts
to "allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. Thus, the
plaintiff must plead more than mere labels and conclusions, and
a formulaic recitation of the elements of a particular cause of
action does not suffice. Twombly, 550 U.S. at 555. At a
minimum, the complaint should "contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory."
Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276,
1282-83 (11th Cir. 2007) (per curiam) (quoting Roe v. Aware
Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.
2001)
In evaluating whether the complaint satisfies this
standard, the court must "accept as true the facts as set forth
in the complaint and draw all reasonable inferences in the
plaintiff's favor." Randall v. Scott, 610 F.3d 701, 705 (11th
Cir. 2010). Ordinarily, the court's review on a motion to
dismiss is typically limited to the factual allegations
appearing on the face of the complaint, see Iqbal, 556 U.S. at
678, such that the presentation of matters outside of the
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pleadings converts the motion into one for summary judgment,
Fed. R. Civ. P. 12(d). Even so, there are certain instances in
which a court may consider matters outside of the pleadings
without transforming the motion to dismiss into one for summary
judgment, see Davis v. Self, 547 F. App'x 927, 929 (11th Cir.
2013), including, for example, documents that are incorporated
into the complaint by reference, see Fed. R. Evid. 201(a)-(d);
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007)
DISCUSSION
Defendant now moves to dismiss Plaintiff's Amended
Complaint under Rule 12(b). Dkt. No. 11-1. Defendant contends
that Plaintiff improperly amended the original Complaint, did
not timely serve Defendant with the Amended Complaint, and fails
to state any claim for relief in the Amended Complaint. Id. at
pp. 5-13. Plaintiff responds that Defendant's Motion is moot,
because Defendant simultaneously filed the Motion along with its
Answer to the Amended Complaint. Dkt. No. 16,
pp. 7-8.
Nevertheless, Plaintiff goes on to argue that the Motion should
be denied, because she properly filed the Amended Complaint and
a
had adequate justification for its untimely service. Id. at pp.
8-12. Plaintiff further insists upon the legal sufficiency of
her Title VII claims, though she concedes that her Section 1981
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claims are time barred and subject to dismissal. Id. at pp. 2,
12-17.
Defendant also moves to dismiss the original Complaint,
apparently as a precautionary measure in the event that the
Court finds this to be the operative pleading. See Dkt. No. 18,
pp. 1-2. Defendant has consolidated its briefing in support of
this Motion with that offered as a Reply to its first Motion to
Dismiss. Id. As such, Defendant's briefing responds to
Plaintiff's contention that its first Motion is moot, and makes
largely the same arguments for dismissal of both complaints that
were advanced with regard to only the Amended Complaint in that
Motion. See id. at pp. 6-13, 15-16. However, the briefing goes
slightly further than the first Motion, in that it seeks
dismissal based on the allegedly defective nature of the Summons
served on Defendant on November 18, 2015, as well as Plaintiff's
alleged failure to plead facts sufficient to support the
elements of a Title VII retaliation claim. Id. at pp. 13-14,
16-18.
I. Timing of Defendant's Motion
Rule 12(b) provides that "[e]very defense to a claim for
relief in any pleading must be asserted in the responsive
pleading if one is required." Fed. R. Civ. P. 12(b). However,
a party raising by motion the defenses enumerated under the
rule—including insufficient process, insufficient service of
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process, and failure to state a claim—must do so "before
pleading if a responsive pleading is allowed." Id. (emphasis
added). While the party may challenge the legal sufficiency of
the claims to relief in a later pleading, the defenses of
insufficient process and insufficient service of process are
waived if not properly raised in a pre-answer motion or in the
first responsive pleading. See Fed. R. Civ. P. 12(b), (h) (1)(2)
Defendant's filing of the Motion to Dismiss Plaintiff's
Amended Complaint appears to comport with Rule 12(b). Defendant
filed the Motion before its first responsive pleading, as the
docket of this case shows that Defendant submitted the Motion at
4:28 PM, dkt. no. 11, and subsequently filed an Answer at 4:30
PM, dkt. no. 12, on November 12, 2015. Defendant's Motion seeks
dismissal under Rule 12(b) for insufficient service of process
and failure to state a claim, dkt. no. 11-1, pp. 5-13, and its
Answer similarly raises these defenses, dkt. no. 12,
p. 3.
Accordingly, Defendant did not waive these defenses under the
plain language of the rule. See Lau v. Klinger, 46 F. Supp. 2d
1377, 1382-83 (S.D. Ga. 1999) (no waiver where the defendants
moved to dismiss the complaint for insufficient service of
process and continued to assert this defense in their laterfiled answers).
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Nevertheless, the Court recognizes that district courts in
the Eleventh Circuit take different approaches where a defendant
files a motion to dismiss for failure to state a claim
contemporaneously with, or around the same time as, its filing
of an answer to the pleading:
Some courts deny the motion as moot or waived. See,
e.g., Breckenridge Pharm., Inc. v. Metabolite Labs.,
Inc., No. 04-80090, 2007 WL 201261, at *4 n.4 (S.D.
Fla. Jan. 24, 2007). These courts reason that,
because a motion to dismiss challenges the sufficiency
of the allegations within the complaint, an answer
that admits or denies those allegations (and raises
any available affirmative defenses) waives any
objection a party may have under Federal Rule of Civil
Procedure 12(b) (6) to move to dismiss for failure to
state a claim. See id. Some courts will consider a
motion to dismiss even if a defendant had previously
answered the complaint. See, e.g., Blitz Telecom
Consulting, LLC v. Mingo, No. 6:11-cv-12-Orl-31 KRS
(M.D. Fla. Mar. 21, 2011), ECF No. 21. Still[,] other
courts, in the interest of judicial efficiency,
construe such motions as if they were motions for
judgment on the pleadings. See Thornton v. City of
St. Petersburg, Fla., No. 8:11-cv-2765, 2012 WL
2087434, at *2 (M.D. Fla. Jun[e] 8, 2012) (citing
Brisk v. City of Miami Beach, Fla., 709 F. Supp. 1146,
1147-48 (S.D. Fla. 1989)).
ParkerVision, Inc. v. Qualcomm Inc., No. 3:11-CV-719-J-37TEM,
2012 WL 3637154, at *1 (M.D. Fla. Aug. 23, 2012) (footnote
omitted).
The Court declines to find that Defendant's filing of an
Answer on the same day as its Motion to Dismiss for failure to
state a claim rendered its Motion moot. This case is unlike the
majority of those in which courts in this circuit have denied
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such motions on mootness grounds, in that Defendant's Motion—
though filed on the same day as the Answer—did, in fact, comply
with the procedural requirement that it be submitted before the
responsive pleading. Cf. Walker v. Mead, No. 6:13-CV-1894-ORL36, 2014 WL 2778162, at *1 (M.D. Fla. June 18, 2014) (motion to
dismiss was moot because it was filed simultaneously, in a
single document, with the answer); Alilin v. St. Farm Mut. Auto.
Ins. Co., No. 6:14-CV-1183-ORL, 2014 WL 7734262, at
*3 (M.D.
Fla. Jan. 30, 2014) (motion to dismiss was not timely where it
was filed on the same day as and docketed after the answer);
Brisk, 709 F. Supp. at 1147 (motion to dismiss was moot because
it was filed five days after service of an answer) .
Although Plaintiff cites one case in which the defendants'
motions to dismiss were denied as moot despite technically being
filed before their answers, see dkt. no. 16, pp. 7-8 (citing Keh
v. Americus-Sumter Cty. Hosp. Auth., No. 1:03-CV-68-2(WLS), 2006
WL 871109, at *1_2 (M.D. Ga. Mar. 31, 2006)), the reasoning in
that case does not apply here. In Keh, the court noted that
"the contradictory natures of motions to dismiss and answers"
made it "impossible as a procedural matter . . . to rule on the
While the court's discussion in Alilin does not detail the exact
order in which the defendant filed its motion to dismiss and answer,
see 2014 WL 7734262, at *3, the docket of that case indicates that the
motion to dismiss was filed and docketed after the answer, Motion to
Dismiss Counts II and III, Alum (No. 6:14-CV-1183-ORL), 2014 WL
7734262, ECF No. 7.
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motions to dismiss," because "it is technically impossible to
challenge[] the sufficiency of an allegation in a complaint, as
one does in a motion to dismiss, while simultaneously admitting
or denying the same allegation, as one does in an answer." 2006
WL 871109, at *2 (citing Brisk, 709 F. Supp. at 1147) . Here,
Defendant's asserted grounds for dismissal for failure to state
a claim include Plaintiff's alleged failure to exhaust her
administrative remedies and noncompliance with the statute of
limitations, dkt. no. 11-1, pp. 8-13, and Defendant echoed these
defenses in its Answer, dkt. no. 12, p. 3. As a result, there
is no inherent inconsistency between Defendant's positions in
its Motion to Dismiss and Answer that would prevent the Court
from evaluating the merits of its Motion at this time.
Nor does it appear that equity or judicial efficiency
supports treating the Motion to Dismiss as one for judgment on
the pleadings. See ParkerVision, Inc., 2012 WL 3637154, at *2
(finding that it would be "harsh and inequitable" to the
plaintiff to convert the motion to dismiss filed just before the
answer into a motion for judgment on the pleadings). To the
contrary, "[a] plaintiff is not prejudiced by the filing of
[dismissal] motions simultaneously with an answer, . . . [as]
that very filing puts the plaintiff on notice that the defendant
is not waiving its right to assert the motions." Beary v. W.
Publ'g Co., 763 F.2d 66, 68 (2d Cir. 1985) (defendant did not
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waive its right to assert a motion to dismiss by filing the
motion simultaneously with the answer). Thus, nothing in Rule
12(b) or the pertinent case law counsels against considering the
merits of Defendant's Motion to Dismiss the Amended Complaint.
II. Propriety of Plaintiff's Amendment of the Complaint
Pursuant to Federal Rule of Civil Procedure 15(a) ("Rule
15(a)"), a plaintiff may amend her complaint "as a matter of
course" within either (a) twenty-one days after serving it or
(b) twenty-one days after receiving service of a responsive
pleading or motion, if one is required. Fed. R. Civ. P.
15(a) (1). In other words, a plaintiff may amend her pleading as
a matter of right "so long as [the] amendment is filed 'within,'
or 'not beyond,' 21 days of service of a pleading, service of a
responsive pleading if required, or the filing of a motion under
[Federal Rules of Civil Procedure] 12(b) (e) or (f) ." Stephens
v. Atlanta Indep. Sch. Sys., No. 1:13-CV-978-WSD, 2013 WL
6148099, at *2 (N.D. Ga. Nov. 22, 2013) (noting that "within"
means "not beyond a particular area, limit, or period of time"
(quoting Cambridge Dictionary)). A plaintiff seeking to amend
at any time outside of these three windows may do so only with
the court's leave or with the opposing party's written consent.
See Fed. R. Civ. P. 15(a)(2).
In the case at bar, Plaintiff's attempt to amend the
original Complaint was not in accordance with Rule 15(a). When
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Plaintiff filed the Amended Complaint on October 14, 2015, see
dkt. no. 7, she had not yet served Defendant with the original
Complaint. Consequently, none of the three circumstances for
amending as a matter of course were present at that time: it was
not within twenty-one days of serving the original Complaint,
nor had Defendant filed any answer or motion in the case.
Plaintiff thus needed to obtain the consent of the Court or
Defendant prior to the amendment, and it is undisputed that
Plaintiff did not do so.
Nevertheless, the Court finds that it would serve the
purposes of Rule 15(a) to allow Plaintiff's amendment to stand
despite its procedural deficiency when filed. Rule 15(a)
instructs courts to "freely give leave [to amend] when justice
so requires." Fed. R. Civ. P. 15(a)(2). "The thrust of Rule
15(a) is to allow parties to have their claims heard on the
merits, and accordingly, district courts should liberally grant
leave to amend when 'the underlying facts or circumstances
relied upon by a plaintiff may be a proper subject of relief."
In re Engle Cases, 767 F.3d 1082, 1108 (11th Cir. 2014) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)). The rule thus serves
to facilitate the amendment of a pleading, so long as the
defendant does not suffer any prejudice as a result. Stephens,
2013 WL 6148099, at *2 (citing Charles Alan Wright et al.,
Federal Practice & Procedure § 1480 (3d ed. 2010)) (plaintiff
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could proceed with her otherwise procedurally improper amended
complaint, based on notice to the defendant, tolling of the
statute of limitations, and the fact that the court would have
granted a timely request for leave to amend).
Here, allowing Plaintiff's Amended Complaint will not
prejudice Defendant, as Defendant became aware of Plaintiff's
claims when she served the Glynn County Attorney with a copy of
the Amended Complaint on October 21, 2015, see dkt. no. 10.8
Conversely, as discussed with regard to sufficiency of service
below, if the Court were to disallow this pleading, the
applicable statute of limitations would bar Plaintiff from
refiling it in a new action. See infra Part III. Moreover, had
Plaintiff moved for the Court's permission to file the Amended
Complaint at issue prior to having done so, the Court would have
freely granted that request.
Thus, although Plaintiff failed to comply with the formal
requirements of Rule 15(a) prior to amending her Complaint, the
relevant considerations under that rule militate toward allowing
the Amended Complaint as a pleading in this case. As the
Amended Complaint supersedes the original Complaint, see
Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1345
8
Notwithstanding Defendant's arguments regarding the validity of
service of process on this date, see dkt. no. 11-1, pp. 5-7,
Defendant's filing of its Motion to Dismiss and Answer shortly
thereafter unequivocally demonstrates that this attempt at service
did, in the very least, put Defendant on notice of the claims against
it, see dkt. nos. 11-12. See infra Part III.
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I
(11th Cir. 1999) (citing Dussouy v. Gulf Coast I n v. Corp., 660
F.2d 594, 601 (5th Cir. 1981)), Defendant's Motion to Dismiss
the original Complaint (dkt. no. 18) is DISMISSED at moot.
To
the extent that Defendant's Motion to Dismiss the Amended
Complaint (dkt. no. 11) is based on its alleged noncompliance
with Rule 15(a), Defendant's arguments in this regard lack
merit.
III. Sufficiency of Service of Process
A plaintiff bears the responsibility of serving the
defendant with copies of the complaint and a summons in
accordance with Federal Rule of Civil Procedure 4(m) ("Rule
4(m)"). Lepone-Dempsey v. Carroll Cty. Comm'rs., 476 F.3d 1277 1
,
1280-81 (11th Cir. 2007) (citing Fed. R. Civ. P. 4(c) (1)) . Rule
4(m) provides, in part, as follows:
If a defendant is not served within 120 days after the
complaint is filed, the court—on motion or on its own
after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time. But if the
plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.
Fed. R. Civ. P. 4(m). 9 Rule 4(m) thus requires that a plaintiff
properly effect service on the defendant within 120 days after
A recent amendment to this rule shortened the 120-day period for
service to only 90 days; however, this amendment went into effect on
December 1, 2015, and thus does not apply here. See Fed. R. Civ. P. 4
advisory committee's note.
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filing a complaint against it. Lepone-Dempsey, 476 F.3d at 1281
(citing Fed. R. Civ. P. 4(m)).
Where a plaintiff has filed a complaint but has not yet
served the same upon the defendant, the plaintiff's decision to
amend the complaint does not extend the timeframe in which to
effect service under the rule. See Leonard v. Stuart-James Co.
742 F. Supp. 653, 662 (N.D. Ga. 1990). The amended complaint
must still be served within 120 days of the filing of the
original complaint. See id. at 660, 662 (service of the amended
complaint—while within 120 days of its own filing—came 157 days
after the original complaint's filing and thus was
insufficient); cf. Stephens, 2013 WL 6148099, at *1, 3 n.3
(service of the amended complaint was proper 108 days after the
original complaint's filing). In those circumstances, the
amended complaint must be served in the same manner as an
original complaint, rather than the manner applicable to
subsequent pleadings. See Leonard, 742 F. Supp. at 662.
Relevant here is that the Federal Rules of Civil Procedure
contemplate two methods for serving a complaint upon a local
governmental entity: (a) "delivering a copy of the summons and
of the complaint to its chief executive officer," or (b)
"serving a copy of each in the manner prescribed by that state's
law for serving a summons or like process on such a defendant."
Fed. R. Civ. P. 4(j) (2). tinder Georgia law, a county must be
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served by delivering these documents "to the chairman of the
board of commissioners, president of the council of trustees,
mayor or city manager of the city, or to an agent authorized by
appointment to receive service of process." O.C.G.A. § 9-114(e) (5)
In this case, it is undisputed that Plaintiff did not
properly serve Defendant within the 120-day service period under
Rule 4(m). See Dkt. No. 11-1, p. 6; Dkt. No. 16, p. 8.
Plaintiff served copies of the Amended Complaint and Summons
upon the Glynn County Attorney on October 21, 2015, which was
118 days after filing the original Complaint. Dkt. No. 10. As
Plaintiff recognizes in her briefing, see dkt. no. 16,
p. 8,
this attempt at service was ineffective, because the Glynn
County Attorney was not an individual authorized to accept
service on Defendant's behalf under Georgia law. While
Plaintiff's attempt to re-serve Defendant was made by delivery
to an appropriate person—Defendant's Chairman—it did not occur
until November 18, 2015, which was 146 days after the original
Complaint was filed. See Dkt. Nos. 13-15.
Nevertheless, because Rule 4(m) affords two "safety
hatches" for complaints served outside the 120-day window,
Plaintiff's failure to perfect service within that timeframe is
not necessarily fatal to. her cause of action. See Lau, 46 F.
Supp. 2d at 1380. Rather, Plaintiff may avoid a dismissal of
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I
this action by demonstrating good cause for failing to meet the
service deadline, in which case the Court would be obligated to
extend that deadline for an appropriate period. See LeponeDempsey, 476 F.3d at 1281 (citing Fed. R. Civ. P. 4(m)).
Alternatively, Plaintiff may avoid dismissal by convincing the
Court to exercise its discretion to extend the time for service
even in the absence of good cause. See id. (citing Horenkamp v.
Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir. 2005)); Lau, 46
F. Supp. 2d at 1380 (citing Madison v. BP Oil Co., 928 F. Supp.
1132, 1135 (S.D. Ala. 1996)). The Court must first resolve the
issue of good cause before turning to discretionary
considerations. See, e.g., Petrucelli v. Bohringer & Ratzinger,
46 F. 3d 1298, 1306 (3d Cir. 1995); Lau, 46 F. Supp. 2d at 1381.
A. Good Cause
"Good cause exists 'only when some outside factor[,] such
as reliance on faulty advice rather than inadvertence or
negligence, prevented service.'" Lepone-Dempsey, 476 F.3d at
1281 (alteration in original) (quoting Prisco v. Frank, 929 F.2d
603, 604 (11th Cir. 1991)). Courts have likened good cause to
the concept of "excusable neglect," see Fed. R. Civ. P.
6(b) (1) (B), which requires a showing of good faith and a
reasonable basis for noncompliance with the time set forth in
the rule. See, e.g., Adams v. AlliedSignal Gen. Aviation
Avionics, 74 F.3d 882, 887 (8th Cir. 1996) (citing Lujano
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I
V.
Omaha Pub. Power Dist., 30 F.3d 1032, 1035 (8th dr. 1994), and
Pellegrin & Levine, Chartered v. Antoine, 961 F.2d 277, 282-83
(D.C. Cir. 1992)); Lau, 46 F. Supp. 2d at 1380 (citing Madison,
928 F. Supp. at 1137). While certain factors outside of a
plaintiff's control satisfy this standard, neither inadvertence
of counsel nor unfamiliarity with the governing rules is one of
them. See, e.g., Petrucelli, 46 F.3d at 1307 (citing Lovelace
v. Acme Mkts., Inc., 820 F.2d 81, 84 (3d Cir. 1987)); Hamilton
v. Endell, 981 F.2d 1062, 1065 (9th Cir. 1992) (citing Wei
V.
Hawaii, 763 F.2d 370, 372 (9th Cir. 1985)) . Nor does the
tolling of the statute of limitations excuse noncompliance with
Rule 4(m). Leonard, 742 F. Supp. at 662 n.8.
Plaintiff fails to demonstrate good cause for her untimely
service on Defendant. Plaintiff first argues that she made a
good-faith effort to timely serve Defendant through the Glynn
County Attorney, which she "reasonably believed" would satisfy
service of process. Dkt. No. 16, p. 9. However, regardless of
Plaintiff's good faith, her service upon the wrong party was
attributable only to her or her counsel's own inadvertence in
neglecting. to consult or carefully review the unambiguous
provisions regarding service on a local governmental entity.
Equally unavailing is Plaintiff's second argument, in which
she points to the tolling of the statute of limitations as good
cause not to dismiss this case, see id. (citing Rhodan v.
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Schofield, No. CIVA 1:04CV2158 TWT, 2007 WL 1810147, at *5 (N.D.
Ga. June 19, 2007)). While the court in Rhodan cited the
statute of limitations' functional bar on refiling as both good
cause and a basis for exercising its discretion to enlarge the
time for service, 2007 WL 1810147, at *5, the cases on which it
relied discussed these circumstances only with regard to the
discretionary considerations for the court, see Lepone-Dempsey,
476 F.3d at 1282; Horenkamp, 402 F.3d at 1132-33 (quoting Fed.
R. Civ. P. 4(m) advisory committee's note to 1993 amendment).
Indeed, it is well established that the statute of limitations
plays no role in the good-cause inquiry. See Leonard, 742 F.
Supp. at 662 n.8 (collecting cases).
Rather, Plaintiff's failure to properly serve Defendant
within the 120-day period was the result of her own mistake as
to the appropriate method of service. While Plaintiff could
have discovered this error and re-served Defendant within this
timeframe had she acted sooner after filing the Complaint, her
decision to wait until the final hour prevented her from doing
SO.
Plaintiff thus fails to carry her burden of demonstrating
that good cause warrants extending the time for service in this
case.
B. Discretionary Considerations
Rule 4(m) affords a district court discretion to enlarge
the 120-day period for service of process even if there is no
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good cause shown. Horenkamp, 402 F.3d at 1132 (citing Henderson
v. United States, 517 U.S. 654 (1996) ("Complaints are not to be
dismissed if served within 120 days, or within such additional
time as the court may allow.")). Factors that may warrant
granting a permissive extension of time for service include, for
example, "if the applicable statute of limitations would bar the
refiled action, or if the defendant is evading service or
conceals a defect in attempted service." Id. at 1132-33
(quoting Fed. R. Civ. P. 4(m) advisory committee's note to 1993
amendment). Other relevant considerations may include whether
the defendant had notice of the suit despite the plaintiff's
failure to perfect timely service, and whether the defendant has
received proper service since the close of the 120-day window.
See id. at 1133.
The Court finds that the facts of this case justify an
extension of time for service beyond that which is outlined in
Rule 4(m). As Plaintiff emphasizes in her briefing, see dkt.
no. 16, pp. 10-12, the statute of limitations for filing a Title
VII action is ninety days after receiving the "right-to-sue"
letter. Abram-Adams v. Citigroup, Inc., 491 F. App'x 972, 975
(11th Cir. 2012) (citing 42 U.S.C. § 2000e-5(f)(1)). Plaintiff
received such letter on March 27, 2015, am. compl., ¶ 10, and,
therefore, the period in which to file suit on these claims
expired on June 25, 2015. A dismissal of the Amended Complaint,
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I
even without prejudice, would be tantamount to a dismissal with
prejudice under these circumstances, because the statute of
limitations would foreclose the refiling of Plaintiff's claims.
Also notable is that Defendant became aware of this action
during or soon after the 120-day period, as evidenced by its
filing of a Motion to Dismiss and Answer within weeks thereof.
See Dkt. Nos. 11-12. Furthermore, as discussed supra, Plaintiff
properly served Defendant's Chairman with copies of the Amended
Complaint and Summons shortly after the 120-day period, on
November 18, 2015. Dkt. Nos. 13-15.
Defendant's argument based on this Court's decision in
Cummings v. Douberly, No. 2:13-cv-59-LGW-RSB (S.D. Ga. Apr. 7,
2014), does not change this result. See Dkt. No. 18,
pp. 15-16.
In Cummings, the Court noted that "the running of the statute of
limitations does not require that a district court extend the
time for service of process," as the court has discretion in
making this decision. Order at 3, Cummings, No. 2:13-cv-59-LGWRSB, ECF No. 14 (quoting Horenkamp, 402 F.3d at 1133). The
Court applied this rule to dismiss the plaintiff's action in
Cummings, despite the fact that the applicable statute of
limitations could bar a refiling of her complaint. Id. at 3-4,
4 n.2. However, Cummings is distinguishable from this case in
that the plaintiff there had already obtained one extension of
the time for service from the Court and failed to serve the
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defendant within the extended period. Id. at 3-4. Moreover,
Cummings did not involve any showing of a good-faith attempt to
perfect service after the deadline, or any other consideration
that would weigh in favor of extending the deadline to allow the
plaintiff another opportunity to do so. As the circumstances of
Cummings were much unlike those in this case, the Court finds no
reason to reach a similar outcome here.
Plaintiff thus meets her burden of convincing the Court
that the facts of this case warrant an extension of the time for
service under Rule 4(m). As the Court finds that service on
November 18, 2015, was appropriate under the circumstances,
Plaintiff's service on Defendant on this date was not untimely.
Defendant's Motion to Dismiss Plaintiff's Amended Complaint on
these grounds is, therefore, DENIED- 10
10
Defendant's arguments regarding the contents of the Summons issued
at the time of the Amendment Complaint's filing, see dkt. no. 18, pp.
13-14, likewise fail. Defendant's Motion does not purport to seek
dismissal for insufficient process under Federal Rule of Civil
Procedure 12(b) (4), see dkt. no. 11-1; rather, Defendant introduces
these arguments for the first time in its Reply brief, see dkt. no.
18, PP. 13-14. As the Summons was served on the Glynn County Attorney
on October 21, 2015, and thus was before Defendant at the time of
filing its Motion on November 12, 2015, see dkt. no. 11, Defendant
waived these arguments by failing to raise them in its initial
briefing in support of its Motion. See Herring v. Sec'y, Dept. of
Corrs.,, 397 E'.3d 1338, 1342 (11th Cir. 2005) ("As we repeatedly have
admonished, '[a]rguinents raised for the first time in a reply brief
are not properly before a reviewing court.'" (alteration in original)
(quoting United States v. Coy, 19 F.3d 629, 632 n.7 (11th Cir.
1994))). Even if Defendant had properly raised these arguments, they
would not provide grounds for dismissal. See Drill S., Inc. v. Int'l
Fid. Ins. Co., 234 F.3d 1232, 1238 (11th Cir. 2000) (a summons that is
"technically defective" is not fatal to service of process so long as
it is in "substantial compliance" with the rules and there is no
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IV. Plaintiff's Title VII Claims (Counts One and Two)
An action for discrimination in violation of Title VII may
not be brought "unless the alleged discrimination has been made
the subject of a timely-filed EEOC charge." Alexander v. Fulton
Cty., 207 F.3d 1303, 1332 (11th Cir. 2000) (citing 42 U.S.C. §
2000e-5), overruled on other grounds by Manders v. Lee, 338 F.3d
1304, 1328 n.52 (11th Cir. 2003). To be timely, a plaintiff
must file a charge with the EEOC within 180 days after the
alleged discrimination occurred. 42 U.S.C. § 2000e-5(e) (1). If
the plaintiff does not file before this time elapses, her
subsequent judicial claim is procedurally barred for failure to
exhaust her administrative remedies. See Del. St. Coil. v.
Ricks, 449 U.S. 250, 256 (1980).
Additionally, an EEOC charge must set forth, among other
things, "[a] clear and concise statement of the facts, including
prejudice to the defendant (citing Sanderford v. Prudential Ins. Co.
of Am., 902 F.2d 897, 900 (11th Cir. 1990))); Morrel v. Nationwide
Mut. Fire Ins. Co., 188 F.3d 218, 224 (4th Cir. 1999) ("[S]ervice of
process is not legally defective simply because the complaint misnames
the defendant in some insignificant way."); Tremps v. Ascot Oils,
Inc., 561 F.2d 41, 44 (7th Cir. 1977) ("A defendant who is clearly
identified by a summons and complaint and who has been served with
those documents may not avoid the jurisdiction of the district court
merely because he is incorrectly named in them .....(It is
sufficient if the documents are] not susceptible to any reasonable
doubt or confusion about who it was the plaintiff intended to sue."
(citing United States v. A. H. Fischer Lumber Co., 162 F.2d 872 (4th
Cir. 1947))); Fed. Deposit Ins. Corp. v. Swager, 773 F. Supp. 1244,
1249 (D. Minn. 1991) (technical defects in identifying the defendant's
name and address did not justify dismissal where the defendant had
received timely notice of the action and suffered no actual
prejudice).
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I
pertinent dates, constituting the alleged unlawful employment
practices." Alexander, 207 F.3d at 1332 (alteration in
original) (quoting 29 C.F.R. § 1601.12(a)(3)). The purpose of
this requirement is to give the EEOC the first opportunity to
investigate the alleged discriminatory practices so that it may
attempt to help resolve the situation if it sees fit. Gregory
v. Ga. Dep't of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004)
(citing Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 929
(11th Cir. 1983)) . A subsequent judicial complaint is "limited
by the scope of the EEOC investigation which can reasonably be
expected to grow out of the charge of discrimination."
Alexander, 207 F.3d at 1332 (quoting Muihall v. Advance Sec.
Inc., 19 F.3d 586, 589 n.8 (11th Cir. 1994)). Allegations in
the complaint "may encompass any kind of discrimination like or
related to allegations contained in the charge and growing out
of such allegation during the pendency of the case before the
[EEOC]." Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466
(5th Cir. 1970) (quoting King v. Ga. Power Co., 295 F. Supp.
943, 947 (N.D. Ga. 1968)). The complaint may also "amplify,
clarify, or more clearly focus" the allegations in the EEOC
complaint, "but allegations of new acts of discrimination are
inappropriate." Gregory, 355 F.3d at 1279-80 (citing Wu v.
Thomas, 863 F.2d 1543, 1548 (11th Cir. 1989)). Still, courts
are "reluctant to allow procedural technicalities to bar
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I
claims," and "the scope of an EEOC complaint should not be
strictly interpreted." Id. at 1280 (quoting Sanchez, 431 F.2d
at 460-61, 465)
1. Hostile Work Environment
Plaintiff has properly exhausted her hostile work
environment claim to the extent that it is based on the
circumstances surrounding her inability to serve in the Data
Analyst position. Under Title VII, a hostile work environment
exists where "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.'" Harris
v. Forklift Sys., Inc., 510 U.S. 17, 17 (1993) (citation
omitted) (quoting Mentor Savings Bank, FSB v. Vinson, 477 U.S.
57, 65, 67 (1986)). A hostile work environment ordinarily
constitutes a "continuing action" or "continuing violation."
See Penaloza v. Target Corp., No. 8:11-CV-2656-T-33AEP, 2012 WL
6721011, at *6 (M.D. Fla. Dec. 27, 2012), aff'd, 549 F. App'x
844 (11th Cir. 2013); Lane v. Ogden Entm't, Inc., 13 F. Supp. 2d
1261, 1271-72 (M.D. Ala. 1998) ("Application of . . . the
continuing violation theory is most appropriately applicable to
hostile work environment claims, where the claim at issue is not
based on discrete acts, but is based on an ongoing pattern of
offensive conduct.").
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Although Plaintiff's EEOC charge does not explicitly label
the Property Appraisal Office as a "hostile work environment" or
the allegedly discriminatory acts as a "continuing action," dkt.
no. 11, ex. A, its failure to do so is not fatal to Plaintiff's
hostile work environment claim. See Gregory, 355 F.3d at 1280
(courts must liberally construe the scope of an EEOC charge
(quoting Sanchez, 431 F.2d at 460-61, 465)); Sanchez, 431 F.2d
at 462-64 (failure to check the appropriate box is a mere
"technical defect or omission"); see, e.g., Jean-Francois v.
Anderson, No. CIV.A.5:07-CV-34(CAR), 2008 WL 5272864, at *12
(M.D. Ga. Dec. 18, 2008) (hostile work environment claim not
subject to dismissal where the administrative charge did not
state that working conditions had been "hostile, abusive, or
even unpleasant" and only listed a single date—the date of the
plaintiff's discharge—as the relevant date of discrimination).
Rather, Plaintiff's charge alleges facts from which a
reasonable EEOC investigator would infer that the charge raises
a hostile work environment claim. The EEOC charge states that
Plaintiff "believe[d] [she] ha[d] been discriminated against
because of [her] race" and indicates that she formed this belief
based on certain actions of her employer occurring during three
different time periods. See Dkt. No. 11, Ex. A. Most
straightforward is the allegation that Plaintiff stepped down
from the Data Analyst position on October 27, 2009, which, when
AO 72A
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read in context, is intended to suggest that Defendant
constructively forced her out of this position on this date.
See id. The charge goes on to explain that this incident
occurred "after" the following events took place: (1) "the
persons who were assigned to help the previous Caucasian
[employee] in the position were reassigned to other positions in
the office"; (2) Plaintiff was left "to do all the work" while
still expected to fulfill "the duties of [her] previous job";
and (3) Plaintiff was "required to give up [her] office
location" to a less-senior employee, despite office assignments
ordinarily being based on seniority. Id. (emphasis added).
Additionally, the charge states that "[a]fter [Plaintiff]
stepped down from [the] position[,] the Caucasian who was given
the position was also given help for the position." Id.
(emphasis added). It further indicates that at some
unidentified point in time, "Gerhardt[] told [Plaintiff] the
people [who were reassigned during her tenure as Data Analyst]
were needed to be put into the field to collect data," but gave
"[n]o reason . . . as to why [Plaintiff] had to give up [her]
office." Id.
Plaintiff's EEOC charge thus describes the circumstances
leading up to, at the time of, and after her resignation from
the Data Analyst position, which collectively caused her to
believe that Defendant had acted with discriminatory animus
AO 72A
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against her. In this way, this case is distinguishable from
those cited by Defendant, see dkt. no. 11-1, pp. 10-12, in which
the administrative charge complained of a single action taken by
the employer-defendant on a certain date and for what appeared
to be a discriminatory reason. See, e.g., Green v. Elixir
Indus., Inc., 152 F. App'x 838, 841 (11th Cir. 2005) (alleging
that the defendant had terminated the plaintiff's employment on
a single date for attendance policy violations, even though
nonminority employees having violated those policies were
retained); Perrymond v. Lockheed Martin Corp., No. 1:09-CV-1936TWT, 2010 WL 987218, at *8 (N.D. Ga. Feb. 3, 2010) report and
recommendation adopted in part, rejected in part, 2010 WL 925178
(N.D. Ga. Mar. 9, 2010) ("Plaintiff does not mention
experiencing a series of discriminatory acts because of her
race, and she does not indicate that the discriminatory events
constituted a continuing action. Instead, she refers to her
termination, [and thus] to retaliation."). As Plaintiff's EEOC
charge in this case alleges that Defendant engaged in a series
of discriminatory acts over a period of time, and that such
conduct was sufficiently severe as to prevent Plaintiff from
remaining in the Data Analyst position, the charge sets forth
facts that reasonably encompass a claim of a hostile work
environment. See Harris, 510 U.S. at 22 ("A discriminatorily
abusive work environment . . . can and often will detract from
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I
employees' job performance, discourage employees from remaining
on the job, or keep them from advancing in their careers.").
However, insofar as Plaintiff's Complaint alleges facts
relating to the black-faced Santa Claus and "Ms. Thang"
incidents, those events were not part of the continuing
violation set forth in the EEOC charge and thus were not timely
pursued. Title VII requires that a plaintiff file a charge of
discrimination with the EEOC within 180 days of the allegedly
discriminatory act, but recognizes an exception where the act is
a continuing violation. See Calloway v. Partners Nat'l Health
Plans, 986 F.2d 446, 448 (11th Cir. 1993). Pursuant to the
continuing violation doctrine,
[w]here an employee charges an employer with
continuously maintaining an illegal employment
practice, [s]he may file a valid charge of
discrimination based upon that illegal practice until
180 days after the last occurrence of an instance of
that practice. However, where the employer engaged in
a discrete act of discrimination more than 180 days
prior to the filing of a charge with the EEOC by the
employee, allegations that the discriminatory act
continues to adversely affect the employee or that the
employer presently refuses to rectify its past
violation will not satisfy the requirement of 42
U.S.C. § 2000e-5(e) that the plaintiff file his charge
of discrimination within 180 days of the
discriminatory act.
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Beavers v. Am. Cast Iron Pipe Co., 975 F.2d 792, 796 (11th Cir.
1992) (quoting Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d
241, 249 (5th Cir. 1980))."
Here, Plaintiff alleges in the Amended Complaint that three
coworkers gave her the black-faced figurine in April 2009, and
that she reported and filed a grievance regarding this event and
Gerhardt's "Ms. Thang" comment in May and June 2009. Am.
Compi., ¶I 14-15, 21, 23-28. As Plaintiff filed her EEOC charge
on April 9, 2010, id. at ¶ 7—roughly one year after these events
allegedly occurred—Plaintiff did not timely pursue her
administrative remedies with regard to these claims. Nor did
these alleged occurrences constitute part of the same continuing
violation as Defendant's actions in allegedly forcing Plaintiff
11
The Court of Appeals for the Fifth Circuit has established certain
factors to guide the inquiry into whether an employer's conduct
constitutes a continuing action. See Berry v. Bd. of Supervisors of
L.S.U., 715 F.2d 971, 981 (5th Cir. 1983). While the Berry decision
is not binding on this Court, its discussion of the relevant factors
is nevertheless instructive here:
The first [factor] is subject matter. Do the alleged acts
involve the same type of discrimination, tending to connect
them in a continuing violation? The second is frequency.
Are the alleged acts recurring (e.g., a biweekly paycheck)
or more in the nature of an isolated work assignment or
employment decision? The third factor, perhaps of most
importance, is degree of permanence. Does the act have the
degree of permanence which should trigger an employee's
awareness of and duty to assert his or her rights, or which
should indicate to the employee that the continued
existence of -the adverse consequences of the act is to be
expected without being dependent on a continuing intent to
discriminate?
Id.; see also Malone v. K-Mart Corp., 51 F. Supp. 2d 1287, 1300-01
(M.D. Ala. 1999) (applying the Berry rubric).
AO 72A
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40
out of the Data Analyst position in October 2009. Rather, the
allegedly offensive gestures and comments of Plaintiff's
coworkers and supervisors were discrete acts: distinct in manner
and motivation from any attempt to thwart her job performance,
occurring months before those alleged attempts took place, and
sufficient to trigger her duty to assert her rights not only
through internal channels but also through an administrative
filing. Consequently, Plaintiff needed to file a discrimination
charge based on these allegations within 180 days of their
occurrence, and her failure to do so bars her from bringing a
hostile work environment claim on these grounds at this time.
2. Retaliation
Plaintiff exhausted her administrative remedies with regard
to her retaliation claim. Title VII makes it unlawful for an
employer to retaliate against an employee "because [s]he has
opposed any practice made an unlawful employment practice by
[Title VII]." Little v. United Techs., Carrier Transicold Div.
103 F.3d 956, 956 (11th Cir. 1997) (quoting 42 U.S.C. § 2000e3(a)). Retaliation thus involves a showing that (1) the
plaintiff engaged in statutorily protected activity; (2) she
suffered a materially adverse action; and (3) there was a causal
link between these two events. Butler v. Ala. Dep't of Transp.,
536 F.3d 1209, 1212-13 (11th Cir. 2008).
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As with her hostile work environment claim, Plaintiff's
failure to use the word "retaliation" and to mark the box
labeled as such in her EEOC charge, see dkt. no. 11, ex. A, is
not determinative of the exhaustion inquiry. See Gregory, 355
F.3d at 1280 (quoting Sanchez, 431 F.2d at 460-61, 465);
Sanchez, 431 F.2d at 462-64. The charge sets forth several
allegedly discriminatory actions taken by Defendant around the
time that Plaintiff stepped down from the Data Analyst position
in October 2009. See Dkt. No. 11, Ex. A. While perhaps
Plaintiff believed race discrimination to be the sole cause for
these actions when she filed her EEOC charge, Defendant could
have taken these actions for many reasons—discriminatory animus,
retaliation for earlier events, or legitimate business concerns—
and it is reasonable to assume that an EEOC investigation into
the alleged actions would have looked into these possibilities.
See Gregory, 355 F.3d at 1280 ("[I]t could be that race and sex
were the only reasons, as [the plaintiff] initially believed,
why she was terminated. It could also be, however, that [she]
was terminated in retaliation for having complained about [a
supervisor's] disparate treatment of her.") An EEOC
investigation into Defendant's motivations—and, more
specifically, Gerhardt's motivations, as he is the only
individual named in the charge as having been involved in the
alleged wrongdoing, see dkt. no. 11, ex. A—would have revealed
AO 72A
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Plaintiff's report and grievance alleging discrimination on the
part of Gerhardt in the preceding months and thus would have
uncovered any evidence of retaliation, see am. compi., ¶I 21,
27. See Gregory, 355 F.3d at 1280 (plaintiff properly exhausted
retaliation claim where the administrative charge alleged only
race discrimination, because the EEOC investigation would have
revealed that the employee had complained about discriminatory
conduct prior to her termination).
As Plaintiff's retaliation claim is "inextricably
intertwined" with her allegations of discrimination, the EEOC
charge encompassed a retaliation claim. See id. Moreover,
according to Plaintiff's Complaint, the EEOC issued a
determination finding probable cause that Defendant had
retaliated against Plaintiff—an allegation that, if true,
conclusively demonstrates that the EEOC had an adequate
opportunity to look into the matter prior to Plaintiff coming to
Court. Because Plaintiff has properly exhausted her
administrative remedies with respect to her retaliation claim,
as well as her hostile work environment claim based on her
experience in the Data Analyst position, Defendant's Motion to
Dismiss these claims is DENIED.
The Court notes, however, that
because Plaintiff did not pursue her administrative remedies
with regard to the black-faced Santa Claus and "Ms. Thang"
AO 72A
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43
I
incidents, Plaintiff cannot sustain a hostile work environment
claim on those grounds.
V.
12
Plaintiff's Section 1981 Claims (Counts Three and Four)
As Plaintiff consents to the dismissal of her Section 1981
claims, see dkt. no. 16, P. 2, Defendant's Motion to Dismiss is
GRANTED as to these counts.
CONCLUSION
Based on the foregoing, Defendant's Motion to Dismiss
Plaintiff's original Complaint (dkt. no. 18) is DISMISSED as
moot.
Defendant's Motion to Dismiss the Amended Complaint (dkt.
no. 11) is GRANTED in part and DENIED in part as follows: it is
GRANTED as to its request for a dismissal of Plaintiff's Section
1981 claims in counts three and four; it is DENIED as to its
request to dismiss all claims for insufficient service of
process; and it is DENIED as to its request for a dismissal of
Plaintiff's Title VII claims in counts one and two for failure
12
In its consolidated Motion to Dismiss the original Complaint and
Reply to the Motion to Dismiss the Amended Complaint, Defendant also
challenges the legal sufficiency of Plaintiff's retaliation claims
under the Twombly/Iqbal pleading standard. Dkt. No. 18, pp. 16-18.
Because Defendant did not raise this issue in its Motion to Dismiss
the Amended Complaint, see dkt. no. 11-1, it cannot do so for the
first time in its Reply brief. See Herring, 397 F.3d at 1342
("[A]rguments raised for the first time in a reply brief are not
properly before a reviewing court." (alteration in original) (quoting
Coy, 19 F.3d at 632 ri.7)). The Court thus declines to consider these
arguments at this time. See Perrymond, 2010 WL 987218, at *10
(concluding that it would be "inappropriate" to address the
defendant's Twombly/Iqbal arguments where its initial brief in support
of its motion raised only the issue of exhaustion, and these arguments
appeared for the first time in its reply brief).
AO 72A
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I
to state a claim. Accordingly, Plaintiff's Section 1981 claims
against Defendant are hereby DISMISSED, but her Title VII claims
remain viable at this time.
SO ORDERED, this 11TH day of August, 2016.
LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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