Williams v. Georgia Stevedore Association, Inc. et al
Filing
108
ORDER denying 36 Motion to Dismiss; denying 43 Motion to Dismiss; granting 49 Motion to Dismiss Plaintiff's first Amended Complaint. Signed by Judge William T. Moore, Jr on 3/18/2013. (loh)
FiLED
U.S.DTE I
SAY;••
IN THE UNITED STATES DISTRICT
THE SOUTHERN DISTRICT OF GEód±
SAVANNAH DIVISION
so. ULS . 0 F 1i,. 0
ROBERT WILLIAMS,
Plaintiff,
CASE NO. CV4I1-284
V.
GEORGIA STEVEDORE
ASSOCIATION, INC. and
INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION LOCAL NUMBER
1414, SAVANNAH, GEORGIA,
Defendants.
ORDER
Before the Court is Defendant Georgia Stevedore
Association, Inc.'s ("GSA") (Doc. 36) and Defendant
International Longshoremen's Association Local Number 1414,
Savannah, Georgia's ("ILA") (Doc. 43) Motions to Dismiss.
Plaintiff has filed responses in opposition to both
motions. (Doc. 40; Doc. 54.) For the reasons that follow,
Defendants' motions are DENIED.'
1
Plaintiff has filed a motion seeking to "dismiss the
pending motion to dismiss Plaintiff's first amended
complaint" or in the alternative, "to strike the reply
brief and all evidence presented outside of the pleadings
set forth in [Defendant GSA's] reply." (Doc. 49.) In its
reply, Defendant GSA included deposition testimony as well
as other factual evidence. (Doc. 48.) After careful
consideration, Plaintiff's motion to strike is GRANTED.
The Court will not consider any materials outside of the
pleadings, with the exception of the Collective Bargaining
Agreement, which is central to Plaintiff's claim and
BACKGROUND
This case involves allegations of retaliation by an
employee
against Defendants GSA and ILA
.
2
Plaintiff is
employed pursuant to a Collective Bargaining Agreement
("CBA") between Defendants GSA and
ILA. (Doc. 35 ¶ 5.)
Defendant ILA is a labor union that contracts with
employers to secure employment for employees. (Id.
Defendant
ILA
11 9.)
uses a hiring hail to supply workers to
several stevedore companies represented by Defendant GSA.
(Id. 1 10.)
Clause 15(B) of the CBA between Defendant GSA and
Defendant
ILA
provides in part that "[m]atters under
dispute which cannot be promptly settled between the Local
and an individual Employer shall, no later than forty-eight
hours after such discussion, be referred in writing
covering the entire grievance to a Port Grievance
Committee." (Doc. 9, Ex. A at 43.) The CBA states that a
"majority decision of this Committee shall be final and
binding on both parties and on all Employers signing this
Agreement." (Id. at 44.)
undisputed in its authenticity. See Horsley v. Feldt, 304
F.3d 1125, 1134 (11th Cir. 2002)
For the purposes of the motions to dismiss, Plaintiff's
allegations, as set forth in his complaint, will be taken
as true. See Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252,
1260 (11th Cir. 2009)
The CBA also provides that
[Defendant ILA] agrees that this Agreement is
intended to cover all matters affecting wages,
hours, and other terms and conditions of
employment and that during the term of this
Agreement the Employers will not be required to
negotiate on any further matters affecting these
or other subjects not specifically set forth in
this Agreement. Anything not contained in this
Agreement shall not be construed as being part of
this Agreement. All past port practices being
observed may be reduced to writing in each port.
(Id.. at 45.)
Finally, the CBA contains a Longshore
Seniority Plan—to which Plaintiff was subject—which
outlines a separate grievance provision requiring that
'[a]ny dispute concerning or arising out of the terms and
conditions of this Agreement shall be referred to the
Seniority Board." (Id. at 80.) If the board cannot
resolve the dispute, then the 'dispute shall be resolved
under the procedure established under Clause 15(B) of the
[CBA] ." (Id.)
According to Plaintiff, he was working
in 2008 as a
header—a person that acts as foreman and selects qualified
workers to work as a group of longshoremen from the Union
hail. (Id. ¶J 20, 21.) Persons with the highest seniority
and qualifications have first priority to fill header
positions. (Id. ¶ 23.) Acting as a header, Plaintiff
selected Linda Walker to work on his longshoreman group,
commonly called a gang. (Id. ¶ 22.) Later in 2008,
3
according to Plaintiff, he was not chosen for a header
position despite having the highest seniority. (Id. ¶ 25.)
As a result, Plaintiff filed grievances against
Defendant ILA President Willie Seymore and Vice President
Eddie McBride for violating seniority header selection
rules. (Id. ¶ 30.) On August 13, 2009, Plaintiff
submitted a written grievance to the president of Defendant
GSA, Steve Zadach, requesting that
his grievance be heard
at the next Port Grievance Committee meeting. (Id. ¶ 33.)
On September 14, 2009, Defendant ILA Vice President McBride
issued a disorderly conduct grievance against Plaintiff.
Months later, in early 2010, the Port Grievance Committee
ruled that Plaintiff should be suspended from working as a
longshoreman for seven days. (Id. ¶ 35.) According to
Plaintiff, he was suspended for hiring Linda Walker and
other females to work on the gang, and filing a grievance
alleging violation of seniority rules in not selecting him
as a header. (Id.
TT 36, 37..) Plaintiff then filed an
EEOC charge.
38.)
(Id.
In March 2010, the Defendant ILA's Executive Board
took no action against Eddie McBride and Willie Seymore for
Plaintiff's charges as to seniority header selection.
Plaintiff was unable to work as a header until the
completion of the EEOC investigation. In January 2011, he
4
was
reinstated as a header.
(Id. ¶ 45.) Plaintiff further
alleges that over the following months, several fabricated
grievances were filed against Plaintiff for insubordination
(id. ¶ 50), leaving a job without securing a replacement
(Id. ¶ 51), disorderly conduct for complaining about the
dispatching of gangs (Id. ¶ 53), and two other disorderly
conduct incidents (Id.
It 54, 55) . In December 2011, the
Grievance Committee suspended Plaintiff for twenty-one days
as a result of one of the disorderly conduct grievances.
(Id. ¶ 56.) After Plaintiff returned to work following his
suspension, he was then found guilty of the insubordination
grievance and was again suspended. Plaintiff's header
status was' also permanently revoked. (Id. ¶ 58.)
Plaintiff received his right to sue (id. ¶ 59) and timely
filed this action. Plaintiff's suit seeks to recover for
retaliation under Title VII, attorney's fees, and punitive
damages. (Id.
IT 79-95.)
Both Defendants GSA and ILA filed motions to dismiss.
Defendant GSA argues dismissal is proper because Plaintiff
failed to arbitrate the claims as required by the CBA,
failed to adequately plead that GSA meets the statutory
definition of employer under Title VII or was ever
Plaintiff's employer, and failed to plead with specificity
the requisites components of a Title VII retaliation claim.
5
(Doc. 36-I.)
Defendant ILA argues that Plaintiff has
failed to exhaust his CBA grievance procedures. (Doc. 43.)
In response, Plaintiff contends that the CBA does not
expressly require arbitration for claims under Title VII,
that the CBA is not binding, that the CBA is unconscionable
under Georgia law, and that Defendants meet the statutory
definition of employer under Title VII. (Doc. 40; Doc.
54.)
ANALYSIS
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a) (2) requires a
complaint to contain "a short and plain statement of the
claim showing that the pleader is entitled to relief."
"[Tihe pleading standard Rule 8 announces does not require
'detailed factual allegations,' but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation."
Aschroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). "A
pleading that offers labels and conclusions
or a formulaic
Atl.
recitation of the elements of a cause of action will not
Igbal makes clear that Twombly has been the controlling
standard on the interpretation of Federal Rule of Civil
Procedure 8 in all cases since it was decided. Iqbal, 556
U.S. at 684 ("Though Twombly determined the sufficiency of
a complaint sounding in antitrust, the decision was based
on our interpretation and application of Rule 8 .
[that] in turn governs the pleading standard in all civil
actions and proceedings in the United States district
courts." (internal quotations and citations omitted)).
do." Igbal,
(internal quotations omitted).
556 U.S. at 678
"Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement." Id.
(quotations omitted)
When the Court considers a motion to dismiss, it
accepts the well-pleaded facts in the complaint as true.
Sinaltrainal, 578 F.3d at 1260. However, this Court is
"not bound to accept as true a legal conclusion couched as
a factual allegation." Iqbal, 556 U.S. at 678. Moreover,
"unwarranted deductions of fact in a complaint are not
admitted as true for the purpose of testing the sufficiency
of plaintiff's allegations." Sinaltrainal,
1268. That is,
578 F.3d
at
"[t]he rule 'does not impose a probability
requirement at the pleading stage,' but instead simply
calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of the necessary
element." Watts v. Fla. Int'l Univ., 495 F.3d 1289,
96 (11th Cir.
2007)
1295-
(quoting Twombly, 550 U.S. at 545).
"Factual allegations must be enough to raise a right to
relief above the speculative level." Twombly, 550 U.S. at
555. As such, a district court may "insist upon some
specificity in [the] pleading before allowing a potentially
massive factual controversy to proceed." Id. at 558.
7
II. THE ARBITRABILITY OF PLAINTIFF'S TITLE VII CLAIMS
An arbitration agreement's validity is governed by the
Federal Arbitration Act ('FAA"), 9 U.S.C. § 1. See Caley
v. Gulf stream Aerospace Corp., 428 F. 3d 1359, 1367
Cir. 2005).
(11th
There is a strong federal policy in favor of
arbitration and "[t]he FAA creates a presumption in favor
of arbitrability; so, parties must clearly express their
intent to exclude categories of claims from their
arbitration agreements." Lambert v. Austin Ind.,
1192, 1197
544 F.3c1
Arbitration clauses should be
(11th Cir. 2008) .
construed generously and 'resolving all doubts in favor of
arbitration." Becker v. Davis,
491 F.3d 1292, 1305
(11th
Cir. 2007)
However, a union-negotiated waiver of employees'
statutory rights to a judicial forum for employment
discrimination must be clear and unmistakable. Wright v.
Universal Mar. Serv. Corp.,
525 U.S. 70, 80 (1998). In
Wright, the United States Supreme Court reaffirmed the
principle of Gardner-Denver,
415 U.S. 36 (1974),
that 'the
right to a federal judicial forum is of sufficient
importance to be protected against less-than-explicit union
waiver in a CBA." Wright,
525 U.S. at 80. The
Court
opined that an agreement's language stating "this Agreement
is intended to
cover all matters affecting wages, hours,
8
and other terms and conditions of employment" and "anything
not contained in this Agreement shall not be construed as
being part of this Agreement did not meet the clear and
unmistakable standard. Id. at 80-81. Moreover, Wright
held that a union employee subject to a seniority plan with
a separate grievance procedure also does not contain a
clear or unmistakable waiver. Id. at 73-74.
At present, Plaintiff's Title VII retaliation claim is
not altered by the CBA—the CBA is very general, and nearly
identical in nature to the one at issue in Wright. The CBA
provides for arbitration of "Matters under dispute."
(Doc. 9, Ex. A at 43.)
The Supreme Court in Wright
expressed concern over that exact phrase indicating that it
"could be understood to mean matters in dispute under the
contract." Wright, 525 U.S. at 80. Further examination of
the CBA in the present case demonstrates more similarities
to the collective bargaining agreement at issue in Wright.
Clause 15(F) of the CBA states "this Agreement is intended
intended to cover all matters affecting wages, hours, and
other terms and conditions of employment." (Doc. 9, Ex. A
at 45.)
Yet, in the same paragraph, the CBA provides that
"[a]nything not contained in this Agreement shall not be
construed as being part of [the CBA] ." (Id.) These
clauses, too, are verbatim to the terms in Wright, where
9
the Supreme Court doubted that there was a clear and
unmistakable incorporation of employment-discrimination
laws. See Wright, 525 U.S. at 81. Lastly, any attempt to
rely on the seniority plan provisions of the CBA for a
clear and unmistakable waiver is similarly misplaced. The
seniority plan specifically limits its grievance
procedures, just as in Wright, to "any dispute concerning
or arising out of the terms and conditions of [the CBA] ."
(Doc. 9, Ex. A at 80.) See Wright, 525 U.S. at 80.
Because the CBA lacks a clear and unmistakable waiver,
there was never an agreement to arbitrate these claims, and
Defendants' motions to dismiss on these grounds are denied. 4
III. AMENDED COMPLAINT AND SCOPE OF EEOC CHARGE
Defendant GSA also moves to dismiss on the grounds
that the amended complaint exceeds the scope of his initial
EEOC charge of retaliation. (Doc. 36-1 at 13.) Plaintiff
contends he is bringing a Title VII retaliation claim that
amplifies and clarifies his EEOC charge. (Doc. 40 at 20..)
A plaintiff may raise claims that "amplify, clarify, or
more clearly focus" allegations made in an administrative
complaint, but they may not raise allegations of new acts
of discrimination." Gregory v.
Ga.
Dep't of Human Res.,
" Because of this finding, Defendant GSA's Motion in the
Alternative to Refer to Arbitration is DISMISSED AS MOOT.
(Doc. 36.)
10
355 F.3d 1277. 1279-81
(11th Cir.
2004) .
An EEOC charge
should not be strictly interpreted, and procedural
technicalities to bar claims brought under Title VII should
be avoided. Id. (citing Sanchez v. Standard Brands, Inc.,
431 F.2d
With that guidance, the
455, 460-61 (l970)).
Court cannot find that Plaintiff's Title VII retaliation
claims exceed the scope of his
EEOC charge. Accordingly,
Defendant GSA's motion to dismiss on this ground is denied.
IV. PLAINTIFF'S TITLE VII RETALIATION CLAIMS
Although a complaint in an employment discrimination
lawsuit 'need not contain specific facts establishing a
prima facie case of discrimination under the McDonnell
Douglas framework," the ' 'ordinary rules for assessing the
sufficiency of a complaint [still] apply.' " tJppal v.
Hosp. Corp. of Am., 482 F. App'x 394, 396 (11th Cir.
(citing Swierkiewicz v. Sorema
2012)
N.A., 534 U.S. 506, 511
(2002)). The Supreme Court has never indicated that the
requirements for establishing a prima fade case under
McDonnell Dougs also apply to the pleading standard that
a plaintiff must satisfy in order to survive a motion to
dismiss. Swierkiewicz,
534 U.S.
at 511. In fact, the
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
dr. 1981) (en banc), the Eleventh Circuit adopted as
binding precedent all decisions of the former Fifth Circuit
handed down prior to close of business on September 30,
1981.
11
Supreme Court has "rejected the argument that a Title
vii
complaint requires greater 'particularity,' because this
would 'too narrowly constric[t]
pleadings.' "
Transp. Co.,
the role of the
Id. (quoting McDonald v. Santa Fe Trail
427 U.S. 273, 283 (1976) ) .
Therefore, the
"Federal Rules do not contain a heightened pleading
standard for employment discrimination suits" and "an
employment discrimination plaintiff need not plead a prima
facie case of discrimination" to survive a motion to
dismiss. Id. at 515. Critically, however, the complaint
must provide enough factual matter—taken as true—to suggest
intentional discrimination. See Davis
Bottling Co. Consol., 516 F.3d
V.
955, 974 (11th
Coca-Cola
Cir.
2008)
(citations omitted)
A.
"Employer" under Title VII
Title VII defines an employer as a "person engaged in
an industry affecting commerce who has fifteen or more
employees for each working day in each of the twenty or
more calendar weeks in the current or preceding calendar
year, and any agent of such a person." 42 U.S.C.
2000e(b). For Title VII purposes, a person includes "one
or more individuals, governments, governmental agencies,
political subdivisions, labor unions, partnerships,
associations, corporations, legal representatives, mutual
12
companies, joint-stock companies, trusts, unincorporated
organizations, trustees, trustees in cases under Title 11,
or receivers." 42 U.S.C. § 2000e (a) Whether a defendant
meets the statutory definition of employer is a threshold
jurisdictional matter. See Virgo v. Riviera Beach Assocs.,
30 F.3d 1350, 1359 (11th Cir. 1994) . A plaintiff must show
that an employer had fifteen or more employees for the
requisite period provided under the statutes before Title
VII claims can be reached. Lyes v. City of Riviera Beach,
166 F.3d 1332, 1340-41 (11th Cir. 1999) . The term employer
is to be interpreted liberally. McKenzie v. DavenportHarris Funeral Home, 834 F.2d 930, 933 (11th Cir. 1987)
The Eleventh Circuit has instructed courts to look
beyond the "nominal independence of an entity and ask
whether two or more ostensibly separate entities should be
treated as
a
single, integrated enterprise" when
determining whether a plaintiff's employer falls within the
definition of Title VII. Lyes, 166 F.3d at 1341. To that
end, the Eleventh Circuit has identified three
circumstances where aggregation of multiple entities is
appropriate: the integrated enterprise—where two entities
are highly integrated with respect to ownership and
operations; joint employers—where two entities contract
with each other and one company retains sufficient control
13
over the terms and conditions of the other company's
employees; and, the agency test—where an employer delegates
sufficient control of some traditional riqhts over
employees to a third party. Id. (citations omitted).
While the number of employees is a jurisdictional
question, an issue of whether two distinct, but related
business entities—such as Defendant ILA and Defendant GSA—
is a fact-intensive inquiry, and one more suited for
disposition by this Court on summary judgment than on the
current motion to dismiss. See Lyes,
166 F.3d at 1340-42
(analyzing district court's aggregation of separate
entities at summary judgment stage of litigation); Virgo,
30 F.3d at 1359-62 (same); McKenzie, 834
F.2d 932-34
(same). Accordingly, taking Plaintiff's amended pleadings
as true, Defendants' motions on these grounds are denied.
B.
Title
Title VII Retaliation
Vii's
anti-retaliation
provision,
U.S.C. § 2000e-3(a), provides that
[i]t shall be an unlawful employment practice for
an employer to discriminate against any
[employee] . . . because he has opposed any
practice made unlawful by [42 U.S.C. § 2000e],
or because he has made a charge, testified,
assisted, or participated in any manner in an
investigation, proceeding, or hearing under this
subchapter.
14
42
Retaliation under Title VII occurs when an employee
engages in protected activity, and suffers a materially
adverse employment action that is causally related to that
activity. See Harper v. Blockbuster Entm't Corp., 139 F.3d
1385, 1388 (11th Cir. 1998) ; see also Hopkins v. St. Lucie
Cnty. Sch. 3d., 399 F. App'x 563, 566 (11th Cir 2010). An
adverse employment action is a "tangible employment action
[that] constitutes significant change in employment status
such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities or a decision
causing a significant change in benefits." Burlington
Indus., Inc.
V.
Ellerth, 524 U.S. 742, 761 (1991).
However, "not all conduct by an employer negatively
affecting an employee constitutes adverse employment
action." Davis v. Town of Lake Park Fla., 245 F.3d 1232,
1238 (11th Cir. 2001) . A plaintiff must show "a serious
and material change in terms, conditions, or privileges of
employment." Id. at 1239. A plaintiff's subjective view
is irrelevant, "the employment action must be materially
adverse as viewed by a reasonable person in the
circumstances." Id.
In terms of causation, a plaintiff must show that the
decision-maker was aware of the protected conduct. Shannon
v.Bellsouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir.
15
2002) . Further, to establish the necessary causal link, "a
plaintiff merely has to prove that the protected activity
and the negative employment action are not completely
unrelated."
E.E.O.C. v. Reichhold Chem., Inc., 988 F.2d
1564, 1571-72 (11th
Cir. 1993) .
"At minimum, a plaintiff
must generally establish that the employer was actually
aware of the protected expression at the time it took
adverse employment action." Goldsmith v. City of Atmore,
996 F.2d 1155, 1163 (11th dr. 1993)
At this stage of the proceedings, Plaintiff has
provided enough factual matter to survive a motion to
dismiss. Taking the pleadings as true, Plaintiff causally
links his removal of header status and numerous suspensions
to his refusal to engage in discriminatory treatment of
female workers and his filing of grievances against Willie
Seymore and Eddie McBride. The pleadings are sufficiently
detailed to satisfy the applicable pleading standard.
Accordingly, Defendants' motions to dismiss must be denied.
C.
Plaintiff's Attorney's Fees and Punitive Damages
Claims
Finally, Plaintiff seeks to recover attorney's fees
pursuant to 42 U.S.C. § 1988(b) and punitive damages.
(Doc. 35
ft
89-95.)
Because at this stage of the
16
proceedings, Plaintiff's Title VII claims survive, so too
do his claims for attorney's fees and punitive damages.
CONCLUSION
Bound by Supreme Court precedent of a collectivebargaining agreement nearly identical to the one at issue
in this case, this Court concludes that the CBA at issue in
this case lacks a clear and unmistakable waiver of
Plaintiff's Title VII rights, and thus, Plaintiff was not
required to submit his claim to arbitration. Also,
Plaintiff's amended claims do not exceed the scope of his
EEOC
charge. Finally, the Court finds that Plaintiff has
met the threshold pleading requirements of a Title VII
retaliation claim, thereby precluding dismissal. For the
foregoing reasons, Defendants' Motions to Dismiss are
DENIED.
SO ORDERED this
day of March 2013.
WILLIAM T. MOORE,(
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
17
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