Farrow v. Frazier et al

Filing 37

ORDER granting in part and denying in part 23 Motion for Judgment on the Pleadings; dismissing with prejudice Plaintiff's claims for discrimination based on age (ADEA claim), disability (ADA claim), and color (Title VII-color claim). The parties are permitted to submit revised briefs focusing on the remaining claims on or before 12/14/18 re 24 Motion for Summary Judgment. Signed by Judge Lisa G. Wood on 11/28/2018. (ca)

?l9ntteb States; IBisitrttt Court

tor tbe ^onttiem Biotnct ot C^eorgio
iiruttoiottii BtbtOton
LATISHA DENISE FARROW,

Plaintiff,
2:17-cv-150

V.

KING & PRINCE SEAFOOD

CORPORATION,
Defendant.

ORDER

Before

the

Corporation's

Court

(^'K&P

is

Defendant

Seafood")

King

motion

&

for

Prince

Seafood

judgment

on

the

pleadings, dkt. no. 23, and motion for summary judgment, dkt. no.
24.

BACKGROUND

After

K&P

Seafood

terminated

her

employment.

Plaintiff

Latisha Farrow ('"Plaintiff"), who is proceeding pro se, filed this
lawsuit

against

employment

several

discrimination

of

her

claims.

former
Dkt.

coworkers,
No.

1.

Her

alleging
amended

complaint asserts claims against her former coworkers as well as
K&P

Seafood.

See

Dkt.

No.

6.

Plaintiff's

claims

against the

individual defendants and her state and local claims against K&P
Seafood were dismissed pursuant to the Court's Order adopting the

A0 72A

(Rev. 8/82)

Magistrate Judge's Report and Recommendation.

See Dkt. Nos. 8, 9.

Left pending are Plaintiff's federal claims against K&P Seafood.
Those claims include: (i) discrimination in violation of the Age

Discrimination in Employment Act {'"ADEA"); (ii) discrimination in
violation of the Americans with Disabilities Act (^^ADA"); (iii)

discrimination on the basis of gender, race, and color in violation

of Title VII of the Civil Rights Act of 1964 (^'Title VII"); hostile
work environment in violation of Title VII; and (iv) retaliation

in violation of Title VII.

See Dkt. No. 6.

The discriminatory

employment actions alleged by Plaintiff in connection with those
claims are failure to promote, harassment, and termination.

id.

See

Defendant, through its motion for judgment on the pleadings,

seeks to dismiss the ADEA claim; the ADA claim; any claim for

discrimination based on '"color"; any claim based upon a "failure
to promote"; and any claim for violation of Title VII based on

actions alleged to have occurred more than 180 days prior to
Plaintiff's
Employment

Charge

of

Opportunity

Discrimination

filed

Commission

July

on

with
24,

the
2017

Equal
("EEGC

Charge"). Additionally, through its motion for summary judgment.
Defendant

seeks

to

dismiss

Plaintiff's

Title

VII

claims

of

discrimination based on gender and race, as well as her claim for
retaliation.

Dkt. No. 24.

I.

Motion for Judgment on the Pleadings

In support of its motion for judgment on the pleadings, K&P
Seafood points to Plaintiff's EEOC Charge and makes one argument,

i.e., if Plaintiff did not allege a claim in the EEOC Charge, it
should be dismissed.

See Dkt. No. 23.

The ^^particulars" section of the EEOC Charge, in its entirety,
is as follows:

s I was hired on August 14, 2015, as a Packer on Line
and this was my last held position.
I informed the
Manager and Human Resources that I was being harassed on
multiple occasions. On March 1, 2017, I was discharged.
Will Frazier (Manager) informed me that I was
terminated me [sic] because Tawanna Hardee stated,

was going to beat her up after work" and the employer
will not tolerate that.
No reasons were given for the
above actions.

I believe I was discriminated against because of my
race (African American), sex (Female) and due to

retaliation for having opposed an employment practice
believed to be in violation of Title VII of the Civil

Rights Act of 1964, as amended.

Dkt. No. 14 at 11.
checked

the

box

When completing the EEOC Charge form. Plaintiff
for

(i)

discrimination

based

discrimination based on sex, and (iii) retaliation.

for

discrimination

based

on

age,

disability,

on

race,

(ii)

Id.

The boxes

color,

religion,

national origin, genetic information, or ^^other" are not checked.

Id.

In

her

amended

complaint,

however.

Plaintiff

alleges

discrimination based on some unchecked categories—age, disability,
and color—as well as the checked ones.

See Dkt. No. 6.

The EEOC

issued a Dismissal and Notice of Rights (^^Notice") on October 24,
2017.

Dkt. No. 14 at 13.

its investigation, the

The EEOC determined that, 'Mb]ased on

EEOC is

unable

to

conclude that the

information obtained establishes violations of the statutes.

This

does not certify that the respondent is in compliance with the

statutes.

No finding is made as to any other issues that might be

construed as having been raised in this charge."

Id.

The Notice

informed Plaintiff that she must file a lawsuit within 90 days of

receipt thereof or lose her right to sue based on the EEOC Charge.
Id.

Plaintiff timely filed this lawsuit on December 18, 2017 and

proceeds pro se.

See Dkt. No. 1; Dkt. No. 6.
LEGM. STANDARD

''Judgment on the pleadings is appropriate where there are no
material facts in dispute and the moving party is entitled to

judgment as a matter of law." Perez v. Wells Farqo N.A., 774 F.Sd
1329, 1335 (11th Cir. 2014) (quotation marks omitted) (quoting
Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir.

2001)).

''^In determining whether a party is entitled to judgment

on the pleadings, we accept as true all material facts alleged in
the non-moving party's pleading, and we view those facts in the

light

most favorable

to the

non-moving

party."

Id.

(citing

Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir.

1998)).

''^If

a

comparison

of

the

averments

in

the

competing

pleadings reveals a material dispute of fact, judgment on the

pleadings must be denied." Id. (citing Stanton v. Larsh, 239 F.2d
104, 106 (5th Cir. 1956)).
A.

The ADEA

^'The ADEA, as amended, makes it unlawful for an employer to

discriminate

against

compensation,

terms,

any

individual

conditions,

because of such individual's age.'"

or

with

respect

privileges

of

to

[her]

employment

Smith v. Potter, 310 F. App'x

307, 309-10 (11th Cir. 2009) (quoting 29 U.S.C. § 623(a)(1)).

''The

ADEA requires that an individual exhaust available administrative
remedies by filing a charge of unlawful discrimination with the
EEOC before filing a lawsuit

Id. (quoting Bost v. Fed. Express

Corp., 372 F.3d 1233, 1238 (11th Cir. 2004)).
B.

The ADA

In

general,

the

ADA

prohibits

a

covered

entity

from

discriminating against a qualified individual on the basis of
disability in regard to her terms and conditions of employment.
See 42 U.S.C. § 12112(a).

Before filing suit under the ADA, a

plaintiff must exhaust his administrative remedies by filing a
charge with the EEOC. See 42 U.S.C. § 12117(a) (applying remedies
and procedures of Title VII to ADA); Wilkerson v. Grinnell Corp.,

270 F.3d 1314, 1317 (11th Cir. 2001) (stating that exhaustion
requires the timely filing of a discrimination charge with the
EEOC).

C.

Title VII

Title VII was enacted to prevent employment discrimination,

achieve equal employment opportunity in the future, and to make
victims of employment discrimination

whole.

Hodges

v.

Stone

Savannah River Pulp & Paper Corp., 892 F. Supp. 1571, 1577 {S.D.

Ga. 1995).

It is unlawful for an employer to discriminate against

its employee because of such individual's race, color, religion,
sex, or national origin.

42 U.S.C. § 2000e-2(a)(1).

person

seeking to file a Title VII lawsuit must first file a timely charge
with the EEOC alleging a Title VII violation and exhaust all
remedies provided by the EEOC."

Shi v. Montgomery, 679 F. App'x

828, 831 (11th Cir.) (citing 42 U.S.C. § 2000e-5; Wilkerson, 270
F.Sd at 1317), cert, denied, 138 S. Ct. 121 (2017). "'Charges must

be in

writing, be

under oath or

affirmation, and

contain

the

information and be in the form the EEOC requires." Id. (citing
§ 2000e-5(b); 29 C.F.R. § 1601.3(a) (2000)).

D.

EEOC Charge Requirements

"The timely filing of an EEOC charge is considered a condition
precedent

for

discrimination."

bringing

a

civil

action

alleging

employment

Reed v. Winn Dixie, Inc., 677 F. App'x 607, 610

(11th Cir. 2017). Plaintiffs have a limited period in which to

file a charge with the EEOC.

Id.

For a charge to be timely in a

non-deferral state such as Georgia, it "must be filed in 180 days

after the alleged unlawful employment practice occurred."

Id.

(citing

42

U.S.C.

§ 2000e-5(e)(1)

(Title

VII);

29

U.S.C.

§ 626(d)(1) (ADEA); Hipp v. Liberty Nat'1 Life Ins. Co., 252 F.3d

1208, 1214 n.2 (11th Cir. 2001) (explaining the basic distinction
between ^'deferral" and ^'non-deferral" states)); see also Freeman

V. Koch Foods of Ala., Ill F. Supp. 2d 1264, 1275 (M.D. Ala. 2011)

(explaining that the ADA follows Title VII procedural requirements
in that it requires a plaintiff to file an EEOC charge before the
180-day

limitations . period

(citing

42

U.S.C.

§

12117(a))).

"Failure to file a timely charge with the EEOC generally results
in a bar of the claims contained in the untimely charge."

Reed,

677 F. App'x at 610 (citing Alexander v. Fulton Cty., Ga., 207
F.3d 1303, 1332 (11th Cir. 2000))
.

"The purpose of the exhaustion requirement is to give the EEOC
the first opportunity to investigate the alleged discriminatory
practices and attempt to obtain voluntary compliance and promote
conciliation efforts."

Id. (citing Gregory v. Ga. Dep^t of Human

Res., 355 F.3d 1277, 1279 (11th Cir. 2004)). "Judicial claims are
allowed if they '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 (quoting Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir.
1989)).

In light of the purpose, the Eleventh Circuit has held that
a "plaintiff's judicial complaint is limited by the scope of the

EEOC investigation which can reasonably be expected to grow out of
the charge of discrimination."

Id. (quoting Alexander, 207 F.3d

at 1332); see also Sanchez v. Standard Brands, Inc., 431 F.2d 455,

460 (5th Cir. 1970) (noting that the allegations in a judicial

complaint filed pursuant to Title VII may encompass any kind of
discrimination like or related to the allegations contained in the

charge).

Courts are ''extremely reluctant" to allow procedural

technicalities

to

bar

employment

Sanchez, 431 F.2d at 460-61.

discrimination

claims.

See

As such, "the scope of an EEOC

complaint should not be strictly interpreted."

Id. at 465.

DISCUSSION

In

considering

pleadings,

the

K&P

proper

Seafood's

inquiry

motion

is

whether

for

judgment

Plaintiff's

on

the

amended

complaint is like or related to, or grows out of, the allegations
contained in

her EEOC Charge.

Plaintiff,

without the aid of

counsel, filed an EEOC Charge after she was terminated.
of the EEOC Charge is her termination.

The crux

See Dkt. No. 14 at 11. Her

manager. Will Frazier, told her she was terminated because a female
coworker, Tawanna Hardee, had reported that Plaintiff threatened
"to beat her up after work."

Id.

Plaintiff specifically alleges

race and sex as a basis for discrimination, as well as "retaliation

for

having

opposed

an

employment

practice."

Id.

Finally,

Plaintiff also mentions being "hired on August 14, 2015, as a

Packer on Line" which was her ^^last held position," and ^^being
harassed on multiple occasions."

Id.

Discrimination Based on Color, Age, and Disability
Plaintiff s

claims

for

discrimination

based

on

age

(ADEA

claim), disability (ADA cl^im), and color (Title Vll-color claim)
must be

dismissed.

Plaintiff did

not check the

box for

those

categories on the EEOC Charge, nor did she allege facts which would
alert

the

EEOC

categories.

to

investigate

discrimination

based

on

those

As such, those claims do not relate to or grow out of

her EEOC Charge, see Gregory at 1280, and are DISMISSED with
prejudice.
Failure to Promote Allegations

K&P

Seafood

argues that Plaintiff's

^^failure

to

promote"

claim contained in the Complaint must be dismissed on the same

grounds—because the EEOC Charge contains no such allegations.

Dkt.

No. 23 at 2.

While the EEOC Charge does not expressly allege K&P Seafood
failed

to

promote

Plaintiff

because

of

her

protected

classification. Plaintiff does mention that she began and ended

her employment with K&P Seafood in the same position.

Dkt. No. 14

at 11 (^^I was hired on August 14, 2015, as a Packer on Line and

this was my last held position. . . . On March 1, 2017, I was
discharged.").

Viewing the facts in the light most favorable to

Plaintiff as the non-moving party, Hawthorne, 140 F.Sd at 1370, it

is possible the information contained in the EEOC Charge could
have alerted the EEOC to investigate why Plaintiff had not been

promoted

after

having

been

employed

approximately one and one-half years.

by

K&P

Seafood

for

K&P Seafood makes no other

argument for dismissal of Plaintiff's failure to promote claim.
As such, K&P Seafood's motion for judgment on the pleadings with
regard to this claim is DENIED.
Acts that Occurred Prior to 180-day Statutory Period

Finally, K&P Seafood moves for judgment on the pleadings as

to ^Ma]ny claim for violation of Title VII . . . based on actions
alleged to have occurred more than 180 days prior to Plaintiff's
EEOC charge filed on July 24, 2017."
Seafood

essentially

argues

for

the

Dkt. No. 23 at 2.
exclusion

of

K&P

numerous

allegations in Plaintiff's Complaint of incidents alleged to have
occurred before January 26, 2017, the 180-day "cut-off" date.

at 6-8.

Id.

Among those are complaints about "Mrs. Linda," dkt. no.

6-1 at 2, complaints about Tawana Hardee, id. at 2-3, complaints
about "Mrs. Carolyn," id. at 3, and complaints about Will Frazier,
id. at 3-4.

K&P Seafood's argument is too broad and needs parsing.

The U.S. Supreme Court has distinguished between "discrete
acts" of discrimination and cumulative acts which make up a hostile
work environment.

See Nat'1 R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 110 (2002).

10

[D]iscrete discriminatory acts are not actionable if
time barred, even when they are related to acts alleged
in timely filed charges. Each discrete discriminatory
act starts a new clock for filing charges alleging that
act. The charge, therefore, must be filed within the
[180 or 300-]day time period after the discrete
discriminatory act occurred. The existence of past acts
and the employee's prior knowledge of their occurrence,
however, does not bar employees from filing charges
about related discrete acts so long as the acts are
independently discriminatory and charges addressing
those acts are themselves timely filed. Nor does the
statute bar an employee from using the prior acts as
background evidence in support of a timely claim.

Discrete acts such as termination, failure to promote,
of transfer, or refusal to hire are easy to
identify. Each incident of discrimination and each
retaliatory adverse employment decision constitutes a
separate actionable ^'unlawful employment practice."
denial

Id. at 113, 114.
Hostile

The Court continued.

environment

claims

are

different in

kind

from

discrete acts. Their very nature involves repeated
conduct. See 1 B. Lindemann & P. Grossman, Employment
Discrimination Law 348-349 (3d ed. 1996) . . . (^^The
repeated nature of the harassment or its intensity
constitutes evidence that management knew or should have
known of its existence"). The ''unlawful employment
practice" therefore cannot be said to occur on any
particular day. It occurs over a series of days or
perhaps years and, in direct contrast to discrete acts,
a single act of harassment may not be actionable on its
own. See Harris v. Forklift Systems, Inc., 510 U.S. 17,
21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ("As we pointed
out in Heritor [Savings Bank, FSB v. Vinson, All U.S.
57, 67 . . . (1986),] 'mere utterance of an . . . epithet
which engenders offensive feelings in a[n] employee,'
ibid. (internal quotation marks omitted), does not
sufficiently affect the conditions of employment to
implicate Title VII"). Such claims are based on the
cumulative effect of individual acts.

11

In

determining

whether

an

actionable

environment
claim
exists,
we
circumstances,"
including
''the

discriminatory conduct; its severity;
physically
offensive

interferes

threatening
utterance;

with

or
and

an

or

it

work

work
the
the

whether it is

humiliating,
whether

employee's

[Harris, 510 U.S. 23.]

hostile

look
to
^'all
frequency
of

a

mere

unreasonably

performance."

To assess whether a court may,

for the purposes of determining liability, review all
such conduct, including those acts that occur outside
the filing period, we again look to the statute. It
provides that a charge must be filed within 180 or 300
days "after the alleged unlawful employment practice
occurred." A hostile work environment claim is composed
of a series of separate acts that collectively
constitute one "unlawful employment practice." 42 U.S.C.
§ 2000e-5(e)(1). The timely filing provision only

requires that a Title VII plaintiff file a charge within
a certain number of days after the unlawful practice
happened. It does not matter, for purposes of the
statute, that some of the component acts of the hostile
work environment fall outside the statutory time period.
Provided that an act contributing to the claim occurs
within the filing period, the entire time period of the
hostile environment may be considered by a court for the
purposes of determining liability.
That act need not, however, be the last act. As long as

the employer has engaged in enough activity to make out
an

actionable

hostile

environment

claim,

an

unlawful

employment practice has "occurred," even if it is still
occurring. Subsequent events, however, may still be part
of the one hostile work environment claim and a charge

may be filed at a later date and still encompass the
whole.

Id. at 115, 116-17 {footnote omitted).

In light of the Supreme Court's decision in Morgan, the Court

concludes three things.

First, with regard to her claims for

termination, failure to promote, and retaliation. Plaintiff cannot
base those claims on discrete discriminatory acts that occurred

12

outside

the

statutory

time

period.

''^Discrete

acts

such

as

termination[ and] failure to promote . . . are easy to identify.
Each

incident

of

discrimination

and

each

retaliatory

adverse

employment decision constitutes a separate actionable ^unlawful
employment practice.'"

Morgan, 536 U.S. at 114.

Thus, Plaintiff

^^can only file a charge to cover discrete acts that ^occurred'
within the appropriate time period."

Id.

Second, though the

statute of limitations bars claims of discrimination for discrete

acts outside the statutory time period. Plaintiff can use those

prior acts as background evidence in support of her timely claims
of termination, failure to promote, and retaliation.

Finally, Plaintiff may use allegations of incidents outside
the statutory period to support her hostile work environment claim.
See Dkt. No. 6-1 at 2.

23 at 5, Plaintiff
harassment.

As K&P Seafood acknowledged, see dkt. no.

has

pleaded discrimination in the form of

Taking the facts in the light most favorable to

Plaintiff, the allegations of harassing incidents which occurred
outside

the

statutory

time

period

might " be

used

along

with

incidents which occurred within the statutory time period to show
a practice of harassment amounting to a hostile work environment.
Morgan, 536 U.S. at 117 ("Provided that an act contributing to the
claim occurs within the filing period, the entire time period of
the

hostile environment

may be

considered

purposes of determining liability.").

13

by a

court for

the

In summary, K&P Seafood's motion for judgment on the pleadings
on the untimeliness ground is GRANTED in part and DENIED in part.
It

is

GRANTED

such

that

Plaintiff

may

not

assert

claims

of

discrimination based on discrete acts which occurred outside the

statutory time period.

Plaintiff may, however, use those acts as

background

to

evidence

support

timely-filed

claims

of

discrimination, i.e. failure to promote because of her gender and
race, termination because of her gender or race, retaliation for

engaging in protected conduct. Additionally, the motion is DENIED
such that Plaintiff may use incidents which occurred outside the
statutory

time

period

to

support

her

claim

for

hostile

work

environment.

II.

Motion for Sumznary Judgment

On the same date it filed the motion for judgment on the

pleadings, K&P Seafood also filed a motion for summary judgment.
See Dkt. No. 24.

Per the Scheduling Order, the deadline for filing

dispositive motions—November 30, 2018—has not yet passed. Dkt.
No. 19.

In light of the Court's ruling, the parties are permitted

to revise their briefs on the motion for summary judgment.

Such

revisions are due by December 14, 2018.
CONCLUSION

K&P Seafood's motion for judgment on the pleadings, dkt. no.
23, is GRANTED In part and DENIED in part.

It is GRANTED as to

Plaintiff's ADA claim, ADEA claim, and Title Vll-color claim; those

14

claims are DISMISSED with prejudice.

The motion for judgment on

the pleadings is DENIED as to Plaintiff's failure to promote claim
to the extent Plaintiff asserts such an act occurred within the

statutory time period.

The motion is GRANTED as to discrete

employment actions which occurred outside the statutory period.
Plaintiff may use incidents which occurred outside the statutory
time period as background evidence for her timely claims, including
her hostile work environment claim.

Remaining before this Court

are Plaintiff's claims for discrimination based on race and gender
in violation of Title VII; retaliation in violation of Title VII;
and hostile work environment in violation of Title VII.

The Court does not rule on the motion for summary judgment,

dkt. no. 24, today.

The parties are permitted to submit revised

briefs focusing on the remaining claims on or before December 14,
2018.

SO ORDERED, this 28th day of November, 2018.

RON

LISA GOOBER WOOD, JUDGE

UNITED STATES DISTRICT COURT
SOUTHERN

15

DISTRICT OF GEORGIA