Jackson v. Deen et al
ORDER granting in part and reserved in part 57 Motion to Dismiss; granting in part and reserved in part 58 Motion to Dismiss. Signed by Judge William T. Moore, Jr. on 8/12/13. (bcw)
Jackson v. Deen et al
IN THE UNITED STATES DISTRICT COURT
THE SOUTHERN DISTRICT OF GEORGIA
LISA T. JACKSON,
CASE NO. CV412-139
PAULA DEEN; PAULA DEEN
ENTERPRISES, LLC; THE LADY &
SONS, LLC; THE LADY
ENTERPRISES, INC.; UNCLE
EUBBA'S SEAFOOD AND OYSTER
HOUSE, INC.; and EARL W.
UNCLE BUBBA'S SEAFOOD AND
OYSTER HOUSE, INC. and EARL
LISA T. JACKSON,
Before the Court are Defendants Paula Deen, Paula
Deen Enterprises, LLC, The Lady & Sons, LLC, and The Lady
Enterprises, Inc.'s (Doc. 57) and Defendants Uncle Bubba's
Seafood and Oyster House, Inc. and Earl W. Hiers's (Doc.
58) Motions to Dismiss. For the following reasons,
Defendants' motions are
GRANTED IN PART
claims under the Civil Rights Act of 1866, codified at 42
U.S.C. § 1981, and Title VII of the Civil Rights Act of
1964 for hostile work environment and disparate treatment
based on racial discrimination are
RESERVES ruling on the remainder of Defendants' Motions to
This case involves allegations of both sexual
harassment and racial discrimination by Plaintiff Lisa T.
Jackson, a white, female employee of Defendant Uncle
Bubba's Seafood and Oyster House, Inc. ("Uncle Bubba's") .
Specifically, Plaintiff alleges that while she was employed
by Defendant Uncle Bubba's, Defendant Hiers 2 subjected her
to repeated "sexual harassment and discrimination, racial
harassment and discrimination, and abusive treatment" over
a period of five years. (Doc. 47 ¶ 19.) Plaintiff
contends that, over this period of time, she made numerous
and frequent complaints to various levels of corporate
management, such as Defendant Paula Deen, Defendant Hiers,
The Court accepts Plaintiff's allegations as true for the
purposes of ruling on Defendants' Motions to Dismiss.
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th
According to the complaint, Defendant Hiers owns 49 of
Defendant Uncle Bubba's Seafood and Oyster House, Inc.
(Doc. 47 ¶ 14.) The Court will refer to these two
defendants collectively as Hiers Defendants.
the Chief Operations Officer and Director of Operations for
Defendant Paula Deen Enterprises, the Certified Public
Accountant for Deen Defendants, 3 and counsel for Defendants.
(Id. ¶ 18.) According to Plaintiff, however, no action was
taken to remedy the repeated discriminatory and harassing
action by Defendant Hiers. (Id.)
Plaintiff began working as a hostess for Defendant
Uncle Bubba's in February of 2005. (Id. ¶ 19.) In six
months, Plaintiff was promoted to General Manager, a
position she held until the end of her employment in August
of 2010. (Id. ¶J 19-20.) Plaintiff contends that, during
this time, she also worked directly for Defendants Paula
Deen Enterprises and The Lady Enterprises, Inc. (Id.
In her complaint, Plaintiff describes the corporate
management for Defendants as a " 'Boys [sic] Club' where
men occupy management positions and women are not invited
to take on substantial decision-making roles." (Id. ¶ 31.)
She claims that she was denied additional promotion to
positions for which she was qualified because the male
managers "would never allow a woman to tell them what they
need to do." (Id. ¶J 29-30.) After requesting a raise in
The Court will refer to Defendants Paula Deen; Paula Deen
Enterprises, LLC; The Lady & Sons, LLC; and the Lady
Enterprises, Inc. collectively as Deen Defendants.
2007, Plaintiff was informed that Defendant Hiers "would
not permit a woman to be paid any more than she was already
paid." (Id. ¶ 38.) Further, Plaintiff contends that she
was provided less compensation that her male counterparts.
(Id. ¶ 43.)
Plaintiff also alleges that she was subjected to
sexual harassment from Defendant Hiers on an almost daily
basis during her five years of employment at Defendant
Uncle Bubba's. (Id. ¶ 48.) She complains that Defendant
Hiers frequently viewed pornography at work in a manner
making it impossible for her to avoid, often requesting
that they view it together. (Id. ¶ 49.) In addition,
Plaintiff claims that Defendant Hiers regularly made
"harassing and abusive comments" (Id. ¶ 48), and related to
her specific details from his visits to strip clubs (id.
¶ 51) . For example, Defendant Hiers asked Plaintiff to
bring him pictures of her when she was young (Id. ¶ 50),
told misogynistic sexual jokes (Id. ¶J 52-54, 56), and
commented on the waitresses being overweight (Id. ¶ 50) and
replacing them with Hooter's girls (Id. ¶ 55).
In her complaint, Plaintiff also alleges that a
"racially biased attitude prevailed throughout and pervaded
Defendants' restaurant operations." (Id. ¶ 64.) Plaintiff
contends that African-American staff were only permitted to
use the restaurant's rear entrance. Also, African-American
employees were prohibited from using the customer restroom,
which was available to white employees, and working as
hostesses in the front of the restaurant. (Id. ¶J 66-70.)
Finally, Plaintiff claims that Defendant Hiers repeatedly
made racist jokes, often using to refer to AfricanAmericans. (Id. ¶J 71-72.) According to Plaintiff, these
and other comments caused her to face "significant
personnel management challenges." (Id. ¶ 75.)
In addition to these comments about African-American
employees, Plaintiff alleges that Defendant Hiers stated
Plaintiff's father, who was of Sicialian descent, "looks
like a n''" and questioned how Plaintiff looked so
white. (Id. ¶ 73.) Also, Plaintiff relates that she was
personally offended by the constant racist jokes and
statements because she has biracial nieces. (Id. ¶ 78.)
Finally, Plaintiff claims that the racist atmosphere in the
workplace caused her "immense personal and work related
emotional and physical distress" because
to her to complain and for help, which she felt obligated
to give but was unable to fully provide." (Id. ¶ 80.)
After receiving notice of her right to sue from the
Equal Employment Opportunity Commission ("EEOC"), Plaintiff
filed her complaint in the Superior Court of Chatham
County, which was later removed to this Court.
Following removal, Plaintiff filed an amended complaint.
(Doc. 47.) In this fifteen-count complaint, Plaintiff
brings claims for negligent failure to prevent sexual and
TT 128-144), gross
racial harassment in the workplace (Id.
negligence and negligence per se (Id.
intentional infliction of emotional distress (Id.
161) , assault (Id.
¶J 162-165) , battery (Id. ¶J 166-169)
hostile work environmental and racial discrimination under
¶J 170-175) and the
both the Civil Rights Act of 1866 (id.
Civil Rights Act of 1964 (Id.
¶J 198-205, 214-221),
disparate treatment under both the Civil Rights Act of 1866
¶j 176-182) and the Civil Rights Act of 1964 (Id.
¶ 206-213, 222-228), ratification (id.
TT 183-186), and
breach of contract (Id. ¶ 190-193) . In response,
Defendants filed their Motions to Dismiss.
(Doc. 57; Doc.
In their motions, Defendants contend that Plaintiff
lacks standing to pursue her racial discrimination claims
because she does not allege that she suffered any
discrimination because of her race.
Doc. 58 at 16-31.)
(Doc. 57 at 17-19;
Defendants reason that neither Title
VII of the Civil Rights Act of 1964 ("Title VII"), 42
U.S.C. H 2000e-1 to 2000e-17, nor the Civil Rights Act of
1981"), 42 U.S.C. § 1981, permit an individual to
bring claims against an employer for the alleged racial
discrimination of a racial class to which the plainitff
does not belong. (Doc. 58 at 16-20.) In her response,
Plaintiff argues that racial discrimination claims may be
brought by individuals outside of the discriminated class
because the employer's conduct denies her right to
associate in the workplace with persons of other races.
(Doc. 66 at 17.)
MOTION TO DISMISS STANDARD
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."
"[T]he pleading standard Rule 8 announces does not require
'detailed factual allegations,' but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) . "A
Iqbal 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 Twomy 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))
pleading that offers 'labels and conclusions' or a
'formulaic recitation of the elements of a cause of action
will not do.' " Id. (quoting Twombly, 550 U.S. at 555).
"Nor does a complaint suffice if it tenders 'naked
assertion [s] devoid of 'further factual enhancement.'
(quoting Twombly, 550 U.S. at 557) (alteration in
"To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its face.'
Id. (quoting Twombly, 550
For a claim to
have facial plausibility, the plaintiff must plead factual
content that " 'allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
Sinaltrainal v. Coca-Cola Co., 578 F.3d
1261 (11th Cir. 2009) (quoting Iqbal, 556 U.S. at 678)
Plausibility does not require probability, "but it asks for
more than a sheer possibility that a defendant has acted
Iqbal, 556 U.S. at 678.
"Where a complaint
pleads facts that are 'merely consistent with' a
defendant's liability, it 'stops short of the line between
possibility and plausibility of entitlement to relief.'
Id. (quoting Twomby, 550 U.S. at 557.) Additionally, a
complaint is sufficient only if it gives " 'fair notice of
what the . . . claim is and the grounds upon which it
rests.' " Sinaltrainal, 578 F.3d at 1268 (quoting Twombly,
550 U.S. at 555).
When the Court considers a motion to dismiss, it
accepts the well-pleaded facts in the complaint as true.
Sinaltrainal, 578 F.3d 1252 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, 578
F.3d at 1268. That is, "[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
Watts v. Fla. Intl Univ., 495 F.3d
1289, 1295-96 (11th Cir. 2007)
Twombly, 550 U.S.
II. PLAINTIFF'S STANDING TO BRING CLAIMS UNDER TITLE VII
AND SECTION 1981
discrimination claims do not come under the ambit of Title
VII or § 1981 because she fails to allege that she was
Analysis of racial discrimination claims under § 1981
mirrors that of Title VII. Bryant v. CEO ]JeKalb Cnty., 575
discriminated on the basis of her race, but instead claims
that her fellow co-workers were subjected to racial
harassment. (Doc. 58 at 16-19.) In response, Plaintiff
contends that individuals whom have not been racially
discriminated against may still bring racial discrimination
claims under Title VII and § 1981. (Doc. 66 at 16-20.) In
this regard, Plaintiff reasons that she has suffered an
injury—interference with her interracial associations in
the workplace—for which Title VII and § 1981 provide a
Title VII makes it unlawful for an employer "to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of
employment, because of such individual's race, color,
religion, sex, or national origin." 42 U.S.C. § 2000e2 (a) (1). In a claim for disparate treatment, the employer
takes some form of tangible employment action, such as
termination or demotion, based on the race of the employee.
Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 (11th Cir.
2004) . A claim for a hostile work environment is a form of
disparate treatment where the employer's discriminatory
actions improperly altered "the terms and conditions of
Therefore, the Court
F.3d 1281, 1307 (11th Cir. 2009) .
need not discuss these claims separately.
employment, even though the employee is not discharged,
demoted, or reassigned." Id. Title VII does not seek to
impose a code of civility in the workplace. Reeves v. C.H.
Robinson Worldwide, Inc., 594 F. 3d 798 (11th Cir. 2010).
Therefore, not all profane or objectionable language
constitutes discrimination under Title VII. Id.
Following the exhaustion of available administrative
remedies, Title VII permits a "person claiming to be
aggrieved" to file a civil complaint seeking damages for
the discriminatory conduct. 42 U.S.C. § 2000e-5(f) (1) (A).
In normal course, there is no question that the individual
filing the complaint easily qualifies as a person claiming
to be aggrieved: that individual, as a member of the
protected class that the employer was discriminating
against, was actually subjected to and suffered from the
discriminatory conduct. Exceedingly rare, and equally
problematic, is a plaintiff seeking damages for her
employer's discriminatory behavior directed toward a class
of individuals to which the plaintiff does not belong.
In Trafficante v. Metro. Life Ins. Co., 409 U.S. 205
(1972), the Supreme Court first attempted to define the
scope of persons aggrieved under section 810(a) of the
Civil Rights Act of 1968, 42 U.S.C. § 3610(a). That act
permitted " ' [a]ny person who claims to have been injured
by a discriminatory housing practice or who believes that
he will be irrevocably injured by a discriminatory housing
practice that is about to occur (hereafter 'personal
aggrieved') [to] file a complaint with the Secretary.'
Trafficante, 409 U.S. at 207 n.1. 6
In Trafficante, one
white tenant and one African-American tenant filed suit
their landlord discriminated against
nonwhites with respect to the rental of apartments. Id. at
206-07. The district court determined that the plaintiffs
were not entitled to sue under that act because neither had
been discriminated against by the landlord. Id. at 207.
Reversing the district court, the Supreme Court stated
in dicta that allowing suit under the Civil Rights Act of
1964 by a person claiming to be aggrieved evidenced
Congress's "intention to define standing as broadly as is
permitted by Article III of the Constitution." Id. at 209
(quoting Hackett v. McGuire Bros., Inc., 445 F.2d 442 (3d
Cir. 1971)). As a result, the Supreme Court concluded that
the ability to allege any injury in fact by an individual
plaintiff satisfies the requirement that the plaintiff be
an aggrieved party. Id. at 209. Therefore, the plaintiffs
The statute now reads that "[aln aggrieved person may, not
later than one year after an alleged discriminatory housing
practice has occurred or terminated, file a complaint with
the Secretary alleging such discriminatory housing
practice." 42 U.S.C. § 3610 (a) (1) (A) (i)
in Trafficante had standing to sue because the "exclusion
of minority persons from the apartment complex is the loss
of important benefits from interracial associations." Id.
Relying on this dicta, some Circuit Courts of Appeal
developed lines of cases that permitted plaintiffs to
pursue Title VII claims where the alleged discrimination
caused any injury cognizable under Article III. See, e.g.,
Clayton v. White Hall Sch. Dist., 875 F.2d 676 (8th Cir.
1989); Stewart v. Hannon, 675 F.2d 846 (7th Cir. 1982);
EEOC v. Miss. Coll., 626 F.2d 477 (5th Cir. 1980); EEOC
Bailey Co., 563 F.2d 439 (6th Cir. 1977); Waites v.
Heublein, Inc., 547 F. 2d 466 (9th Cir. 1976) . Generally,
these cases relied on the language in Trafficante stating
that the loss of interracial associations in housing was a
sufficient injury to render an individual a party aggrieved
despite the fact that they were not personally subjected to
any racial discrimination. Based on this language, these
courts determined that a plaintiff is injured when an
employer's discrimination results in "the lost benefits of
associating with persons of other racial groups." çyg,
875 F.2d at 679. Utilizing the broad language employed in
Trafficante, these courts conclude that the plaintiffs have
suffered injuries sufficient to support a Title VII claim.
See Clayton, 875 F.2d at 679-80; Stewart, 675 F.2d at 84650; Miss. Coil., 626 F.2d at 482-83; Bailey, 563 F.2d at
452-53; Waites, 547 F.2d at 469-70.
Recently, however, the Supreme Court has revisited the
issue of standing in Title VII cases. See Thompson v. N.
Am. Stainless, LP, U.S. , 131 S. Ct. 863 (2011) . In
Thompson, the plaintiff sued his employer claiming that he
was terminated because his fiancé filed an EEOC charge
alleging sexual discrimination. 131 S. Ct. at 867. The
district court dismissed his claim for lack of standing,
concluding that Title VII did not permit retaliation claims
brought by third parties. Id. The Sixth Circuit, sitting
en banc, upheld that decision, concluding that the
plaintiff was not within "the class of persons for whom
Congress created a retaliation cause of action" because he
did not "engaglel in any statutorily protected activity."
Thompson v. N. Am. Stainless, LP, 567 F.3d 804, 807-08 (6th
Cir. 2011) . In reversing the Sixth Circuit, the Supreme
Court determined that the plaintiff did have standing to
pursue his Title VII claim. Thompson, 131 S. Ct. at 86970.
Importantly, the Supreme Court in Thompson rejected
the notion that standing for Title VII claims is
coextensive with standing under Article III. Id. at 869.
Citing the absurd consequences that would follow should
"any person injured in the Article III sense by a Title VII
violation" be permitted to file suit, the court noted that
the Trafficante "dictum regarding Title VII was too
expansive" and "ill-considered." Id. The Supreme Court
declined to follow its earlier dicta, concluding that "that
the term 'aggrieved' must be construed more narrowly than
the outer boundaries of Article III." Id.
After scuttling the Article III standard, the Supreme
Court applied a "zone of interest" test. Id. at 870.
Under this regime, a plaintiff has standing to sue where he
'falls within the zone of interests sought to be
protected by the statutory provision whose violation forms
the legal basis for his complaint.' " Id. ( quot ingLujanv.
Nat'l Wildlife Fed'n, 497 U.S.
871, 883 (1990)). The test
"den[±es] a right of review if the plaintiff's interests
are so marginally related to or inconsistent with the
purposes implicit in the statute that it cannot reasonably
be assumed that Congress intended to permit the suit.'
Id. (quoting Clarke v. Sec. Indus. Assn, 479 U.S. 388,
399-400, (1987)) . A plaintiff has standing to sue if she
possesses an interest that Congress arguably sought to
protect when enacting Title VII, while excluding from suit
"plaintiffs who might technically be injured in an Article
III sense but whose interests are unrelated to the
statutory prohibitions in Title VII." Id. (quoting Nat'l
Credit Union Admin. v. First Nat'l Bank & Trust Co., 522
U.S. 479, 495 (1998))
Applying the zone of interest test, the Supreme Court
concluded that the plaintiff had standing to sue because
"the purpose of Title VII is to protect employees from
their employers' unlawful actions." Id. Also, the
plaintiff in Thompson was not an accidental victim of his
employer's discriminatory acts, nor were his injuries
collateral damage caused by the same unlawful acts. Id.
Rather, "hurting [the plaintiff] was the unlawful act by
which the employer punished [his fiancé]. " Id.
In this case, the Court concludes that Plaintiff is
not an aggrieved party under Title VII because her
interests are not those arguably sought to be protected by
that statute. See Id. 869. At best, Plaintiff is an
accidental victim of the alleged racial discrimination.
There are no allegations that Defendant Hiers's racially
offensive comments were either directed toward Plaintiff 7 or
made with the intent to harass her.
'' Plaintiff did allege that Defendant Hiers stated that her
Sicilian father looked like a n*****. (Doc. 43 ¶ 58.)
This single comment, however, is insufficient to support a
claim under either Title VII or § 1981. First, it was a
Instead, Plaintiff contends that she suffered injury
because Defendants deprived her of "harmonious working
relationships with her African-American subordinates" (Doc.
43 ¶J 177, 216, 223) and denied her "the right to work free
from racial harassment" (Id. ¶ 224) .
Those, however, are
not interests sought to be protected by Title VII.
discriminated against by their employers with respect to
the terms and conditions of their employment.
U.S.C. § 2000e-2.
It does not operate to provide
individuals working unaffected by unlawful racial
discrimination with a cause of action to remedy racial
discrimination directed toward third parties.
Even setting aside the absurd results that could
follow from allowing such a claim, to use Title VII in this
manner would serve to conscript federal courts as human
resource departments that are responsible for imposing and
monitoring a federally created standard for harmony in the
Quite simply, workplace harmony is not an
interest sought to be protected by Title VII.
insufficient to give rise to a hostile work environment.
See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276
(requiring offending conduct to be
(11th Cir. 2002)
frequent to warrant liability under Title VII).
Plaintiff still fails to allege that she personally
suffered any discrimination on account of her race.
reasons, Plaintiff's claims for hostile work environment
and disparate treatment on the basis of race under Title
VII do not state claims upon which relief can be granted
and are due to be dismissed. Because the analytical
framework of claims under § 1981 is indistinguishable,
Plaintiff's claims under § 1981 must also be dismissed.
The cases Plaintiff relies on to support her position
offer little to change this Court's conclusion that her
Title VII and § 1981 claims should be dismissed. First,
the majority of these cases relied on the language in
Trafficante. See Clayton, 875 F.2d at 679-80; Stewart, 675
F.2d at 846-50; Miss. Coll., 626 F.2d at 482-83; Bailey,
563 F.2d at 452-53; Waites, 547 F.2d at 469-70. In
addition, the district court cases Plaintiff cites were all
decided prior to the Supreme Court's 2011 decision in
Thompson. See Gravenda v. Orleans Cnty., 1998 WL 136122
(W.D.N.Y. Mar. 19, 1998) (unpublished); Faulk v. Home Oil
Co., 173 F.R.D. 311 (M.D. Ala. 1997) ; Smithberg v. Merico,
575 F. Supp. 80 (C.D. Cal. 1983); Nat'l Org. for Women v.
Sperry Rand Corp., 457 F. Supp. 1338 (D. Conn. 1978); Bert
v. AK Steel Corp., 2008 WL 2002848 (S.D. Ohio May 7, 2008)
(unpublished). As this Court discussed above, it is
doubtful whether, in light of the Supreme Court's opinion
in Thompson, the dicta in Trafficante can continue to
support the conclusion that Title VII and § 1981 permit a
plaintiff to bring a claim for discrimination leveled
against third parties.
discrimination against the Plaintiff. See Johnson v. Univ.
of Cincinnati, 215 F.3d 561, 572-78 (6th Cir. 2000)
(finding white employee fired because of support for
affirmative action could bring Title VII and § 1981
claims); Parr v. Woodsman of the World Life Ins. Co., 791
F.2d 888, 889-92 (11th Cir. 1986) (finding white plaintiff
could bring Title VII and § 1981 claims where potential
employer refused to hire him based on his interracial
In this case, Plaintiff has not alleged that
she was the target of unlawful discrimination.
Plaintiff neither suffered any adverse employment decision
nor had any of the terms or conditions of her employment
altered, these cases provide little support for her
argument. While Plaintiff may have faced significant
challenges in managing a workplace allegedly permeated with
racial discrimination, her difficulties do not fall within
the zone of interests sought to be protected by Title VII
and cannot support a claim for racial discrimination under
For the foregoing reasons, Defendants Paula Deen,
Paula Deen Enterprises, LLC, The Lady & Sons, LLC, and The
Lady Enterprises, Inc.'s (Doc. 57) and Defendants Uncle
Bubba's Seafood and Oyster House, Inc. and Earl W. Hiers's
(Doc. 58) Motions to Dismiss are
GRANTED IN PART and
Plaintiff's claims under the Civil Rights Act of 1866,
codified at 42 U.S.C. § 1981, and Title VII of the Civil
Rights Act of 1964 for hostile work environment and
disparate treatment based on racial discrimination are
The Court RESERVES ruling on the remainder of
Defendants' Motions to Dismiss.
SO ORDERED this 1
of August 2013.
WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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