Barneman v. International Longshoreman Association Local 1423

Filing 53

ORDER granting in part and denying in part 17 , 31 , 34 , 37 , and 40 Motion / Amended Motions to Dismiss. The parties have 14 days to file briefings informing the Court of Defendants' relationship to ILA and their involvement in the EEOC charge. Plaintiff is ORDERED to serve Defendants GSA, Marine Terminals, Atlantic Ro-Ro, and APS within ten days or face dismissal of his claims against them. Signed by Judge Lisa G. Wood on 2/1/2018. (ca)

Sn tl^e {jiniteb Stalest 3Bts(tdtt Court
for tfie ^ontfiem SBiotrirt of Georgia
iimnototclt IBtlitOtott
RAYFIELD L. BARNEMAN,

Plaintiff,
NO. 2:17-CV-51
V.

INTERNATIONAL

LONGSHOREMAN

ASSOCIATION,

LOCAL

SSA

LLC;

COOPER,

1423;
MARINE

TERMINAL CORPORATION-EAST;
ATLANTIC

RO-RO

STEVEDORING,

LLC;

APS

STEVEDORING

LLC;

GEORGIA

STEVEDORING

and

ASSOCIATION,
Defendants.

ORDER

This

Matter

comes

before

the

Court

on

the

Motions

to

Dismiss of Defendants APS Stevedoring, LLC (^^APS"), Atlantic RoRo

Stevedoring,

LLC

Atlantic

Ro-Ro"),

Georgia

Stevedoring

Association (^^GSA"), Marine Terminals Corporation-East (''Marine
Terminals"),

and

SSA

Cooper,

LLC

("SSA

Rules 12(b)(4), 12(b)(5), and 12(b)(6).

A0 72A

(Rev. 8/82)

Cooper"),

pursuant

to

Dkt. Nos. 17, 31, 34,

37, 40.

These Motions have been fully briefed and are now ripe

for review.

See Dkt. Nos. 24, 45, 46, 47, 48.
BACKGROUND

At

this

Plaintiff's

stage

of

complaint

Federal Rule

the

and

case,
assumed

of Civil Procedure

the

facts

to

be

true,

12(b)(6).

Barneman has peripheral neuropathy.

are

taken

from

according

to

Plaintiff Rayfield

Dkt. No. 1, 8 5 2.

For six

years, he has used a seat cushion to alleviate pain and slow the
degradation of his condition.

Id.

On March 15, 2016, non-party

Richard Nixon issued a memo at Barneman's workplace^ stating that
no personal items were allowed inside the automobiles used as
part of Barneman's job.

Id.

Plaintiff was terminated on April 9, 2016 for having a seat
cushion in his vehicle.
termination,
stating

two

that

required the

his

Id. at 8 53.

attending
medical

use of a

physicians
condition

seat cushion.

Following Plaintiff's
then

of

submitted

peripheral

Id.

With

letters

neuropathy

the letters,

Barneman then submitted a request for a written accommodation.
Id.

Norman Massey denied the request on May 18, 2016, prompting

Barneman to file a grievance with the International Longshoreman
Association

grievance

Local

hearing

1423

(^'ILA")

was

convened

Union

that

that

same

included

day.

Id.

A

representatives

^Plaintiff's complaint does not clearly identify which party or parties named
in this action employs him.

from

ILA,

SSA

Cooper,

APS,

and

GSA.

Dkt.

Complaint seems to indicate that Barneman

No.

5

SI 7.

The

was rehired, as it

alleges that he was granted a reasonable accommodation on July
21, 2016.

Dkt. No. 1

5 SI E.

One day, on August 16, 2016,

Barneman was at work awaiting a van with his seat cushion to
arrive.

Dkt.

No. 5 SI 10.

The

van

never came.

Id.

Barneman

was then terminated on October 17, 2017^, because he would not
get into a van without a seat cushion.

Id. SI 12.

Barneman also

alleges that his colleague Oscar Brown, who is much younger than
Barneman, was treated more favorably than Barneman: Barneman was
not

allowed

to

have

his seat cushion

was allowed to bring his backpack.

into

the

vehicles;

Brown

Id. at SI 10.

Following these events, Barneman filed a charge with the
EEOC on October 28, 2016.
to

sue

letter

on

that the charge

Id. at SI IV.

February 6, 2017,

The EEOC issued a right

which

appears to indicate

named ILA as the respondent.

Dkt. No. 5-12.

The EEOC issued a second dismissal and a right to sue letter on
August 2,

2017,

which

appears to

name

GSA

as the

respondent.

Dkt. No. 16 SI 23, 3.

Barneman filed

suit in

this

Court against

ILA

on

May 3,

2017, alleging violations of the Americans with Disabilities Act

(^''ADA") and the Age Discrimination in Employment Act (^^ADEA").
This is the date listed in Plaintiff's Amended Complaint as well as in the
original complaint, but the original complaint also enumerates alleged
discriminatory conduct occurring on October 17, 2016—so the Court is unsure
when exactly the termination occurred.

Dkt.

No.

1.

On May 22, 2017, he

added

Terminals", Atlantic Ro-Ro, APS, and

SSA Cooper, ^'Marine

GSA as defendants.

Dkt.

No. 5.

The

Second

Amended

Complaint

alleges

collective bargaining unit for Plaintiff.

that

ILA

is

a

Dkt. No. 16 ^ 25.

It

has entered into collective bargaining agreements with GSA, SSA-

Cooper, Marine Terminal, Atlantic Ro-Ro, and APS.

Id.

LEGAL STANDARD

Federal

Rule

of

Civil

Procedure

8(a)

requires

that

a

plaintiff's complaint contain ^^a short and plain statement of the
claim showing that the pleader is entitled to relief."
Civ.

P.

8(a).

In

order

to

state

a

claim

for

Fed. R.

relief,

a

plaintiff's complaint must include ^^enough facts to state a claim
to relief that is plausible on its face."

Bell Atlantic Corp. v.

Twombly,

'''A

550

plausibility
allows

the

U.S.

when
court

544,

the
to

570

(2007).

plaintiff
draw

the

pleads

claim

factual

reasonable

556

U.S.

662,

678

(2009).

The

Court

facial

content

inference

defendant is liable for the misconduct alleged."
Iqbal,

has

that

that
the

Ashcroft v.
accepts

the

allegations in the complaint as true and draws all reasonable
inferences in favor of the plaintiff.

Ray v. Spirit Airlines,

Inc., 836 F.3d 1340, 1347 (11th Cir. 2016).

However, the Court

does not accept as true threadbare recitations of the elements of
the claim and disregards legal conclusions unsupported by factual

4

allegations.

complaint

Iqbal,

should

allegations

556

U.S.

''contain

respecting

all

at

678-79.

either
the

At

direct

material

a

minimum,

or

elements

a

inferential
necessary

sustain a recovery under some viable legal theory."

to

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))
.

"A

[and] a

document

filed

pro

se

is

'to

be

liberally

construed,

pro se complaint, however inartfully pleaded, must be

held to less stringent standards than formal pleadings drafted by
lawyers.'"
Estelle

Civ.

P.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting

V. Gamble, 429 U.S. 97, 106 (1976)); see also

8(f)

("All

pleadings

shall

be

so

construed

Fed. R.

as

to

do

substantial justice.").
Exhaustion

of

administrative

remedies

should be raised in a motion to dismiss.

is

a

matter

that

Basel v. Sec'y of Def.,

507 Fed. Appx. 873, 874 (11th Cir. 2013) (per curiam).

"[I]t is

permissible for a district court to consider facts outside of the
pleadings and
disputes

do

resolve factual disputes so long

not

decide

the

merits

and

the

sufficient opportunity to develop a record."

as the factual

parties

are

given

Id. at 874-75.

DISCUSSION

Defendants (except ILA)
dismissal.

have

raised several arguments for

First, SSA-Cooper, Marine Terminals, Atlantic Ro-Ro,

and APS argue that the claims against them should be dismissed
for failure to exhaust administrative remedies because they were

not named in either of the charges Barneman filed with the EEOC.

Second, GSA argues that the claims against it should be dismissed
for

failure

to

state

a

claim

because

the

complaint

directly tie the complained of actions to GSA.

does

not

Third, GSA argues

that the claims against it should be dismissed because it is not
an employer under the ADA or the ADEA.

Fourth, SSA Cooper argues

that it should be dismissed because it was never summoned before

this Court in this action.

Fifth, SSA Cooper, Marine Terminals,

Atlantic Ro-Ro, and APS argue that the claims against them should
be dismissed because they have neither been formally served nor
waived formal service.

The Court will take up each ground in

turn.

I.

Administrative Exhaustion of Claims Against SSA Cooper,
Marine Terminals, Atlantic Ro-Ro, and APS

Before a plaintiff may bring suit in federal court under the
ADA

or

the

remedies.

Inc.,

674

ADEA,

he

must

first

exhaust

his

administrative

42 U.S.C. § 12117(a); McClure v. Oasis Outsourcing II,

Fed.

Appx.

873,

874

(11th

Cir.

2016);

29

U.S.C.

§ 626(d); Bost v. Fed. Express Corp., 372 F.3d 1233, 1238 (11th

Cir.

2004).

charges

named

Defendants
only

ILA

argue
and

GSA

that
as

because

Plaintiff's

respondents,

he

EEOC

failed

to

exhaust his administrative remedies with respect to the remaining
defendants.

Dkt. No. 17 p. 7.

In the Eleventh Circuit, courts do not have subject-matter

jurisdiction over these claims unless the plaintiff ^^made a good
faith

effort

to

comply

with

the

[EEOC]

regulations

and,

particularly, to provide all the relevant, specific information
available."

Cir.

Wade v. Sec^y of Army, 796 F.2d 1369, 1376 (11th

1986).

That

is,

a

plaintiff

has

not

exhausted

his

administrative remedies unless he has provided the EEOC with the
information

needed

to

evaluate

the

merits

of

his

claim.

Id.

Depending on the context, administrative exhaustion is sometimes
a jurisdictional prerequisite and sometimes a condition precedent
to a civil suit.

See Bloodworth v. Colvin, 17 F. Supp. 3d 1245,

1251 (N.D. Ga. 2014).

As a condition precedent, ^'the Supreme

Court has noted that the EEOC procedural requirements are ^like a
statute of limitations, [and thus] subject to waiver, estoppel,

and

equitable

Airlines,

tolling.'"

Inc.,

455

U.S.

Id.
385,

(quoting
393

Zipes

(1982)).

v.
""^The

Trans

World

purpose

of

exhaustion is to permit the department the first opportunity to
investigate

the

practices . . . ."

alleged

discriminatory

or

Basel, 507 Fed. Appx. at 875.

retaliatory

Additional

""[j Judicial claims are allowed if they ^amplify, clarify, or more
clearly focus' the charges made

before the

agency, and, given

that we are reluctant to allow procedural technicalities to bar

[ADA or ADEA] claims, the scope of the administrative charges

should not be strictly construed."
Dep^t

of

Human

2004)).
limited

Resources,

Consequently,
by

reasonably

the
be

scope

^a
of

expected

discrimination.'"

355

Id. (quoting Gregory v. Ga.

F.Sd

1277,

plaintiff's
the

to

EEOC
grow

1279-80

judicial

of

Cir.

complaint

investigation
out

(11th

the

which
charge

is
can
of

Duble v. FedEx Ground Package Sys., Inc., 572

Fed. Appx. 889, 892 (11th Cir. 2014) (quoting Gregory, 355 F.3d
at 1280).

Generally,

only

parties

previously

identified

filed with the EEOC are subject to liability.

in

charges

Terrell v. U.S.

Pipe & Foundry Co., 644 F.2d 1112, 1122 (5th Cir. 1981), rev'd on

other grounds, 456 U.S. 955 (1982).

The former Fifth Circuit,

however, clarified that this rule should be liberally interpreted

such that parties potentially liable are to be defined by ^Mt]he
reasonable limits of an investigation potentially triggered by
[the] EEOC charge."

Id. at 1123.

See

also

Hamm

v.

Bd. of

Regents of the State of Fla., 708 F.2d 647, 649-50 (11th Cir.

1983).

Courts making this inquiry do not apply a rigid test but

instead look to several factors including: (1) the similarity of
interest

between

the

named

party

and

the

unnamed

party;

(2) whether the plaintiff could have ascertained the identity of

the

unnamed

party

at

the

time

the

EEOC

charge

was

filed;

(3) whether the unnamed parties received adequate notice of the

charges;

(4) whether

the

unnamed

parties

have

an

adequate

opportunity to participate in the reconciliation process; and
(5) whether the unnamed party suffered actual prejudice by its

exclusion from the EEOC proceedings.

DiGiro v. Pall Corp., 993

F. Supp. 1471, 1474 (M.D. Fla. 1998) (citing Eqqleston v. Chicago
Journeymen Plumbers^

Local 130, 657 F.2d 890, 906-07 (7th Cir.

1981), cert, denied, 455 U.S. 1017 (1982)).

At this point, neither side has produced any evidence of any
of these five factors.
evidence.

Therefore,

The parties have 14 days to file such
the

Motion

to

Dismiss

for

Failure

to

Exhaust of SSA Cooper, Marine Terminals, Atlantic Ro-Ro, and APS
is DENIED at this time.'

II.

GSA

Whether 6SA is an employer of Plaintiff

argues

that it

is

not an

employer

defined either under the ADA or under the ADEA.

as

that

term

is

The ADEA defines

an employer as a person engaged in an industry affecting commerce
who has at least twenty employees.

29 U.S.C. § 630(b).

The ADA

defines an employer as a person engaged in an industry affecting
commerce

who

has

§ 12111(5)(A).
Dkt.

No.

contrary.

17

at

least

fifteen

employees.

42

U.S.C.

GSA has shown that it has only four employees.

SI 4.

Plaintiff

has

offered

no

evidence

to

the

Therefore, the Court is satisfied that GSA is not an

employer as defined by the ADA or the ADEA.

Plaintiff

argues,

instead,

that

even

if

GSA

is

not

an

employer, it is a ^'labor organization" subject to the ADEA and
the ADA.

in

an

The ADEA defines a labor organization as one ''engaged

industry

affecting commerce, and

any

agent of such

an

organization . . . concerning grievances, labor disputes, wages,
rates of pay, hours, or other terms or conditions . . .
U.S.C.

§ 630(e).

Similarly,

organization as a covered entity.

the

ADA

includes

a

29
labor

42 U.S.C. § 12111(2).

Defendant has not responded to this argument, and the Court
therefore cannot find that the provisions of the ADA and the ADEA

are inapplicable to GSA.

Therefore, GSA's Motion to Dismiss is

DENIED at this time.

III.

Sufficiency of Complaint against GSA

GSA argues that Barneman's complaint against it should be
dismissed for failure to state a claim upon which relief may be

granted.

Specifically,

GSA

argues

that

Plaintiff

makes

no

allegation that GSA discriminated against him based on disability
or age.

Dkt. No. 17 p. 8.

The Court agrees that the Complaint is less than crystal
clear

about

Barneman.

which

parties

performed

which

actions

against

Still, the Complaint alleges that Barneman was denied

the use of a seat cushion because of a policy imposed by GSA,

that he requested a reasonable accommodation, that each Defendant
was involved in denying that request, and that younger employees
10

were granted similar requests.

Therefore, especially in light of

Plaintiff's pro se status, GSA's Motion to Dismiss for Failure to
State a Claim is DENIED.

IV.

Sufficiency of Process and Service of Process

Defendants

all

argue

also

that

Plaintiff's

complaints

against them should be dismissed for insufficiency of process and
of service of process.

After they filed the Motion to Dismiss,

Plaintiff issued summons for Defendants GSA, Atlantic R-Ro-, APS,

and

Marine

Terminal,

and

they

withdrew

insufficiency of process accordingly.

the

argument

of

Dkt. Nos. 31, 34, 37, 40.

As far as the Court is aware. Plaintiff never issued a summons to

SSA

Cooper

and

still

has

not served

GSA,

SSA

Cooper,

Marine

Terminals, Atlantic Ro-Ro, or APS.

Federal Rule of Civil Procedure 4(b) requires a summons to
^'be

issued

for

each

issued for SSA Cooper.

defendant

served."

No

summons

has

been

Therefore SSA Cooper's Motion to Dismiss

is GRANTED.

Rule 4(c) requires the complaint and summons to be served.
This is effected by either personal delivery to the defendant,
his agent, or one who resides with him or by comporting
Georgia

law

alternative,

plaintiff
addressed.

of
a

makes

service.
defendant

the

Fed.
may

request

R.

waive

in

Civ.

formal

writing

Fed. R. Civ. P. 4(d)(1)(A).

11

P.

with

4(e).

In

the

service

when

the

that

is

properly

'''A defendant's actual

notice is not sufficient to cure defectively executed service."
Albra V. Advan/ Inc., 490 F.3d 826, 829 (11th Cir. 2007).

Here, Plaintiff mailed a copy of the complaint without a
waiver of service form or a summons to the Defendants.

not

comport

service.

with

See

the

federal

O.C.G.A.

effectuated by a

rules

§ 9-11-4(c)

sheriff or one

or

with

That does

Georgia

(requiring

law

service

of

to

be

appointed for that purpose).

Defendants have properly pointed out that this is insufficient,
and Plaintiff failed to address this defect in

his responsive

brief.

to

It

is

the

Plaintiff's

responsibility

service occurred by the server's affidavit.

prove

that

Fed. R. Civ. P.

4(1)(1).

Rule 4(m) requires that if a defendant is not served within
90 days of the filing of the complaint, the court ^^must dismiss
the action without prejudice against that defendant or order that
service be made within a specified time."

(emphasis added).

The

court must extend the deadline if the plaintiff shows good cause
for failure to serve.

Fed. R. Civ. P. 4(m).

Here, Plaintiff has made no attempt to show good cause for
failing to serve the

Defendants.

Therefore, the Court orders

that Plaintiff serve Defendants GSA, Marine Terminals, Atlantic

Ro-Ro,

and

APS

within

10

days.

If

he

Complaint against them will be dismissed.

12

fails

to

do

so,

his

CONCLUSION

The Motion to Dismiss for failure to exhaust administrative

remedies is DENIED at this time.

The parties have 14 days to

file briefings informing the Court of Defendants' relationship to
ILA and their involvement in the EEOC charge.

GSA's Motion to

Dismiss for failure to state a claim is DENIED.

Defendant SSA

Cooper's 12(b)(4) Motion to Dismiss for insufficient process is
GRANTED.

Plaintiff is ORDERED to serve

Terminals,

Atlantic

Ro-Ro,

and

APS

Defendants GSA, Marine

within

10

days

or

dismissal of his claims against them.

SO ORDERED, this 1st day of February, 2018.

HON.'^LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

13

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