Evans v. Georgia Regional Hospital et al

Filing 70

ORDER granting in part and denying in part 53 Motion to Dismiss. Plaintiff's claim for a hostile work environment under Title VII is hereby DISMISSED WITH PREJUDICE, while her claim of unlawful sex discrimination under Section 1983 and Title VII shall proceed. The parties are directed to submit a proposed scheduling order within fourteen days. Signed by Chief Judge J. Randal Hall on 09/25/2018. (maa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

*

JAMEKA K. EVANS,

*
*

Plaintiff,

*

*

V.

CV 415-103

*

GEORGIA DEPARTMENT OF

*

BEHAVIORAL HEALTH AND

*

DEVELOPMENTAL DISABILITIES;

*

CHARLES MOSS, in his personal
*
capacity; and LISA CLARK, in her *
official capacity,
*
*

Defendants.

*
*

ORDER

Before

the

Court

is

Defendants'

Motion

to

Dismiss

Plaintiff's Second Amended Complaint in Lieu Of Answer.
53.)

Plaintiff

Defendants

have

has

filed

filed
a

reply

a

response
in

support.

in

opposition
(Docs.

58,

(Doc.
and
63.)

Accordingly, Defendants' motion has been fully briefed and is
ripe for review.

For the following reasons. Defendants' motion

is GRANTED IN PART AND DENIED IN PART.

I.

A.

BACKGROUND

Factual Background

This

case

Defendant

Georgia

Developmental
that

arises

she

out

Department

Disabilities

was

of

Plaintiff's

of

(the

constructively

employment

Behavioral

^^GDBHDD").

discharged

Health

with

and

Plaintiff claims
due

to

her

gender

nonconformity in violation of Title VII of the Civil Rights Act
of 1964,

42 U.S.C. § 2000e,

et seq. and

42 U.S.C. § 1983.

Accepting Plaintiff's allegations as true and construing all
inferences in her favor, as the Court is required to do, the
facts of the case are as follows.

Plaintiff

started

working

at

Georgia

(''GRH") for the GDBHDD in August 2012.

52, SI 9.)

Regional

Hospital

(Second Am. Compl., Doc.

Plaintiff did not experience harassment until her

supervisor. Lieutenant Alexander Fields, Jr., was replaced by

Defendant Charles Moss.

(I^ SI 10.)

Plaintiff

Moss

had

with

Mr.

before

The only interaction
he

became

Plaintiff's

supervisor was when Mr. Moss asked Plaintiff if she was dating a
female nurse on the hospital staff.

(Id.)

After becoming Facility Safety Chief, Mr. Moss created a

new position, ^^Star Corporal," and selected Shenika Johnson — an

employee

position.

with

less experience than

(Id. SISI 12, 25.)

Plaintiff — to fill that

Mr. Moss also altered the work

schedule and assigned Plaintiff to work from 7:00 p.m. to 7:00

a.m.

(Id. SI 13.)

Plaintiff was the only employee reassigned

from the eight-hour day shift to the twelve-hour night shift.
(Id.)

On July 3, 2013, Plaintiff was standing in the doorway of
an office while performing her duties.

(Id. SI 14.)

Mr. Moss

inquired if Plaintiff was keeping busy, and Plaintiff responded
that she had pulled contraband from a GRH unit.

(Id. SI 14.)

Mr. Moss then responded that Plaintiff ^'^can't hang out here,"

and

proceeded

Plaintiff.

About

Moss's

to

repeatedly

the

office's

door

into

(Id.)

a

month

behavior

later.

to

Management at GRH.
Plaintiff

slam

to

Plaintiff

Defendant

Lisa

Clark,

(Id. SISI 6, 15.)

continue

working

attempted

to

report

Director

of

Mr.

Risk

Ms. Clark eventually told

the

night

shift

and

never

responded to Plaintiff's concerns about the door incident or
being passed over for the Star Corporal position.

(Id. SI 15.)

Plaintiff subsequently filed a written complaint with the
GDBHDD human resources department.

(Id. SI 16.)

Plaintiff was

informed, however, that any complaint that was not corroborated

by a fellow GDBHDD employee would be deemed unsubstantiated,
despite

Plaintiff's

corroborate

her

investigation,

ability

story.

Jamekia

to

find

(Id.)
Powers

—

non-GDBHDD
While

a

GDBHDD

employees

discussing
human

employee — asked if Plaintiff was a homosexual.

to
the

resources

(Id. SI 18.)

Plaintiff

confirmed

that

it

was

apparent

from

her

masculine

appearance and presentation that she was a lesbian, but that she
typically refrained from broadcasting such information.

(Id.)

The investigators subsequently made clear that they would not

take action

against Mr. Moss.

(Id.

SIl

18-19.)

Plaintiff

alleges that she could no longer endure Mr. Moss's harassment
and voluntarily ended her employment at GDBHDD on October 11,
2013.

B.

(I^ SI 19.)

Procedural Background

Plaintiff

initially

filed

her

representation, on April 23, 2015.

complaint,

without

(Compl., Doc. 1.)

legal

Plaintiff

named GRH, Mr. Moss, Ms. Clark, and Ms. Powers as defendants and

alleged

violations

Defendants

orientation

Magistrate

of

Title

discriminated

and

gender

VII.

against

Plaintiff

claimed

due

her

sexual

United

States

her

nonconformity.

to

The

Judge issued a Report and Recommendation

that

C'R&R")

granting Plaintiff's motion to proceed in forma pauperis and
screening

Plaintiff's

1915(e)(2)(B)(ii).

complaint

(Doc. 4.)

to

28

U.S.C.

§

The Magistrate Judge then found

that neither sexual orientation

actionable under Title VII.

pursuant

nor

gender

(Id^ at 5-7.)

nonconformity

were

Moreover, many of

Plaintiff's Title VII claims were against individual defendants,

which is inappropriate under Title VII.

(Id. at 11-12 (citing

Bryant v. Dougherty Cnty. Sch. Sys., 382 F. App'x 914, 916 n.l
(11th

Cir.

2010)).)

Because

Plaintiff

had

not

engaged

in

protected conduct, the Magistrate Judge also recommended that
Plaintiff's retaliation claim be dismissed.

(Id. at 9-10.)

Plaintiff objected to the R&R claiming that discrimination
based

on

gender

nonconformity

actionable under Title VII.

that

as

a

complaint.
comment,

pro

se

(Id.)
dismissed

and

(Doc. 9.)

litigant,

she

was

sexual

orientation

is

Plaintiff also asserted

entitled

to

amend

her

The Court adopted the R&R without further
Plaintiff's

claims

with

prejudice,

and

appointed Gregory R. Nevins of the Lambda Legal Defense and
Education Fund, Inc., to represent Plaintiff on appeal.

(Doc.

12.)

On appeal, the Eleventh Circuit reversed the Court's Order
with respect to Plaintiff's gender nonconformity claims.

See

Evans v. Ga. Reg'1 Hosp., 850 F.3d 1248, 1254 (11th Cir. 2017).
Because Plaintiff's complaint was not futile in this regard, the
court also found that Plaintiff should have been granted leave

to amend.

Id. ('MI]t cannot be said that any attempt to amend

would be futile with respect to her gender nonconformity claim

and

possibly others.").

With

respect to

Plaintiff's

sexual

orientation claim, however, the Eleventh Circuit found that such

claims

were

not

actionable

under

Title

VII.^

Id.

Thus, the

complaint was remanded to this Court with instructions to grant
Plaintiff leave to amend her claim.

On

remand,

Plaintiff

Id. at 1255.

amended

her

complaint

to

cure

the

deficiencies identified by the Eleventh Circuit in her Title VII
claim.

{Doc. 28.)

She also added a claim under 42 U.S.C § 1983

against Mr. Moss and Ms. Clark.
Defendants

filed

Complaint.

(Doc. 41.)

leave

from

Complaint.2

the

a

motion

to

(Id.)
dismiss

On January 29, 2018,
Plaintiff s

Amended

On February 20, 2018, however, without

Court,

(Doc. 52.)

Plaintiff

filed

her

Second

Amended

Defendants have subsequently moved to

dismiss Plaintiffs Second Amended Complaint.^

II. LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) does not test whether the plaintiff

prevail on the merits of the case.

will ultimately

Rather, it tests the legal

^ Plaintiff waived her right to challenge the dismissal of her retaliation
complaint by failing to make a specific objection. Evans, 850 F.3d at 125758.

2 Plaintiff argues that she was entitled to amend her complaint without leave
because the Eleventh Circuit's mandate did not exhaust her right to amend her

complaint once as a matter of course pursuant to Federal Rule of Civil
Procedure 15(a).
In the alternative, Plaintiff asks the Court for leave to
amend.
Because Rule 15(a)(2) mandates that leave be "freely give[n]" and

Defendants

have not objected.

Plaintiff's motion

for leave (doc. 58) is

GRANTED.

3 Plaintiff's Second Amended Complaint supersedes her First Amended Complaint.
See Malowney v. Fed. Coll. Deposit Grp., 193 F.3d 1342, 1345 n.l (11th Cir.
1999)
("An
amended
complaint
supersedes
an
original
complaint.").
Accordingly, Defendant's original motion to dismiss (doc. 41) is DENIED AS
MOOT.

sufficiency of the complaint.

Swierkiewicz v. Sorema N.A., 534

U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)).

Therefore, the court must accept as true all facts

alleged in the complaint and construe all reasonable inferences

in the light most favorable to the plaintiff.

See Hoffman-Pugh

V. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002).

The court, however, need not accept the complaint's legal
conclusions

as true,

only its

Iqbal, 556 U.S. 662 (2009).

well-pled facts.

Ashcroft

v.

A complaint also must ''contain

sufficient factual matter, accepted as true, 'to state a claim

to relief that is plausible on its face.'"

Id. at 678 (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The

plaintiff is required to plead "factual content that allows the
court to draw

the

reasonable inference that the

liable for the misconduct alleged."

probability

requirement

at

the

Id.

defendant is

Although there is no

pleading

stage,

beyond . . . mere possibility . . . must be alleged."

"something
Twombly,

550 U.S. at 556-57 (citing Durma Pharm., Inc. v. Broudo, 544
U.S. 336, 347 (2005)).

Ill.

Defendants

move

to

DISCUSSION

dismiss

Plaintiff's

complaint

to Federal Rule of Civil Procedure 12(b)(1) & (6).'®

argue

that

Plaintiff's

claims

are

time-barred

pursuant

Defendants

under

the

applicable statute of limitations, that Plaintiff has failed to
allege sufficient facts to state a plausible right to relief,
and that Defendants Lisa Clark and Charles Moss are entitled to
qualified immunity.
A.

Statute of Limitations

Defendants argue that Plaintiff's new Section 1983 claims
are barred by the statute of limitations.

Plaintiff responds

that her claims ''relate-back" to the filing date of her initial

complaint and therefore are not time-barred.
Claims under Section 1983 are subject to Georgia's two-year
statute

of

limitation

for

personal

injuries.

See

O.C.G.A. § 9-3-33; Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir.

1996) ("Georgia's two-year personal injury limitations period
applies to [a] claim under . . . sections 1983 and 1985.")
"Because

Georgia

law

provides

the

applicable

statute

of

limitations in this case, if a proposed amendment relates back

under Georgia law, then 'that amendment relates back under [Rule

" Although Defendants moved to dismiss Plaintiff's claims pursuant to Rules
12(b)(1), (2), (4), (5) & (6),
Defendants subsequently abandoned their
motion to dismiss under Rules 12(b)(2), (4) & (5).
Mot. to Dismiss, Doc. 63, at 2.)
8

(Reply in Supp. of Defs.'

15(c)(1)(A)] even if the amendment would not relate back under
federal law rules.'"

Presnell v. Pauldinq Cnty., 454 F. App'x

763, 767 (11th Cir. 2011) (quoting Saxton v. ACF Indus., Inc.,
254

F.3d

959,

963

(11th

Cir.

2001)).

Under

O.C.G.A. § 9-11-15(c), an amended complaint that adds new claims
will

relate

back

if

the

^'conduct,

transaction,

complaint

adds

new

or

new

claim

arises

occurrence."

parties,

however,

out

of

When

the

an

same

amended

O.C.G.A. § 9-11-15(c)

provides:

An amendment changing the party against whom a claim
is asserted relates back to the date of the original

pleadings if the foregoing provisions are satisfied,
and

if

within

the

period

provided

by

law

for

commencing the action against him the party to be
brought in by amendment (1) has received such notice
of the institution of the action that he will not be

prejudiced in maintaining his defense on the merits,
and (2) knew or should have known that, but for a
mistake concerning the identity of the proper party,
the action would have been brought against him.

Plaintiff's Second Amended Complaint includes a new claim

against Mr. Moss and Ms. Clark, who were parties in Plaintiff's
original complaint.
the

Title

VII

Defendants insist, however, that because

claims

against

Mr.

Moss

and

Ms.

Clark

were

dismissed. Plaintiff s amendment should be treated as adding a

new

party.

liberal

Defendants'

construction

O.C.G.A. § 9-11-15.

(Ga. 2007),

interpretation

Georgia

courts

is

contrary

apply

when

to

the

reading

In Deering v. Keever, 646 S.E.2d 262, 264

for example, the Georgia Supreme Court ruled that
9

an

amended

pleading

will

relate

pleading was legally inadequate.

back

even

if

the

original

See also C&S Land, Transp. &

Dev. Corp. v. Yarbrough, 266 S.E.2d 508, 512 {Ga. Ct. App. 1980)

(^'An

amendment

changing

the

capacity in

which

the

plaintiff

brings the action is permissible even after the statute of
limitations has run, and since such amendment does not change

the parties before the court, it should be liberally granted."
(internal

quotations

omitted)).

Even

though

Plaintiff's

original claims were legally insufficient, Mr. Moss and Ms.
Clark

were

named

as

Defendants.

Indeed,

once

the

Court

of

Appeals ordered this Court to grant Plaintiff leave to amend her
complaint, she again named Mr. Moss and Ms. Clark as Defendants
in her Amended Complaint and then again in her Second Amended

Complaint.

Neither her first or second amendment adds parties

that were not named in her original complaint, and, therefore.
Plaintiff's amendments

will be treated as an amendment adding

new claims.

Defendants

Complaint

cannot

involves

deny

that

Plaintiff's

much

of

the

formed

the

basis

discrimination

that

complaint.5

Because

Plaintiff's

same

Second

Amended

allegations

of

Plaintiff s

Second

Amended

of

original

Complaint

5 Defendants, in their brief, admit "courts use the same framework to analyze
claims of sex discrimination under Title VII and § 1983 which are based on
the same set of facts.

Defendants address Plaintiff's failure to state a

claim for unlawful sex discrimination together."
Mot. to Dismiss, Doc. 53-1, at 14 n.7.)
10

(Defs.' Br. in Supp. of

involves

the

same

''conduct,

transaction,

or

occurrence"

set

forth in her original pleading, her new claims relate back to
the

date

of

the

original

complaint:

April

23,

2015.

Accordingly, her Section 1983 claim is not barred by the twoyear statute of limitations under O.C.G.A. § 9-3-33.
B.

Mandate Rule

Defendants also claim that allowing Plaintiff to amend her

complaint to

add

the

Section

1983 claim

would

violate

the

Eleventh Circuit's mandate.

The "mandate rule" forces district

courts

with

to

strictly

reviewing court.
Cir. 1985).

comply

a

mandate

rendered

by

the

Piambino v. Bailey, 757 F.2d 1112, 1119 (11th

The purpose of the doctrine is to avoid repeatedly

litigating decided issues.
966 (11th Cir. 2000).

Murphy v. F.D.I.C., 208 F.3d 959,

"[A] mandate is completely controlling as

to all matters within its compass, but on remand the trial court

is free to pass upon

any issue

impliedly disposed of on appeal."

which

was not expressly or

Gulf Coast Bldq. & Supply Co.

V. Int'l Bhd. of Elec. Workers, No. 480, 460 F.2d 105, 107-08
(5th Cir. 1972) (emphasis added).

Defendants argue that the Eleventh Circuit's instruction
for the Court "to grant [Plaintiff] leave to amend such claim"
was intended to limit Plaintiff's amendments to her

claim.

Title

See Evans, 850 F.3d at 1254 (emphasis added).

11

VII

The

language in the Eleventh Circuit's opinion implying Plaintiff
may have

viable claims in addition to her Title

counsels against such a rigid interpretation.

VII action

See, e.g., id.

('MI]t cannot be said that any attempt to amend would be futile

with

respect to

her

gender

nonconformity claim

others." {emphasis added)).

and possibly

Moreover, considering the explicit

language the Eleventh Circuit used in disposing of Plaintiff's
retaliation claim, the Court will not assume that such subtle

language was intended to foreclose Plaintiff s ability to pursue
an otherwise viable and significantly related claim.
the

Eleventh

Circuit

did

not

restrict

Plaintiff's

Because

ability

to

look beyond her Title VII claim, allowing Plaintiff to add a
Section

1983

claim

would

not

violate

the

Eleventh

Circuit's

mandate.

C.

Waiver of Right to Amend
Defendants

also

contend

that

Plaintiff

has

waived

the

opportunity to raise her Section 1983 claims after she failed to
object

to

the

Magistrate

Judge's

Report

and

Recommendation

dismissing Plaintiff's individual Title VII claims against Mr.
Moss and Ms. Clark.

granted
objection
claims.

leave
was

to

Although Plaintiff did object to not being

amend.

directed

Defendants
solely

at

insist

that

dismissing

her

Plaintiff s
Title

VII

Defendants support this argument by pointing to the

12

language of Plaintiff's objection which states that 'MPlaintiff]
should be allowed at least one opportunity to be granted leave

to amend [her] complaint as new supplemental evidence has arisen
that

affirm

the

consistency

of

the

claims

alleged

in

[her]

complaint with the claims investigated in the EEOC Charge."
(Doc. 9.)
liberal

Adopting such a rigid interpretation would deny the

construction

afforded

to

pro

se

pleadings.

Byrd

v.

Stewart, 811 F.2d 554, 554 (11th Cir. 1987} (^'Pro ^ pleadings
are

to

be

held

to

a

less stringent standard than

pleadings

drafted by attorneys.").

Even if the Court were not bound by the policy of liberally

construing

pro

se

pleadings.

Defendants'

interpretation

essentially asks the Court to punish Plaintiff for failing to
make an objection that at the time would have been frivolous.
The Eleventh Circuit has long held that individuals cannot be
held

liable

under

Title

VII.

See,

e.g..

Busby

v.

City

of

Orlando, 931 F.2d 764, 772 (11th Cir. 1991); Clanton v. Orleans
Parish

Sch.

Requiring

Bd.,

649

F.2d

1084,

Plaintiff to .make

an

1099

n.l9 (5th

objection

Cir.

1981).

claiming otherwise

would be a waste of judicial resources.

D.

Failure to State a Claim Upon Which Relief can be Granted

Defendants finally argue that Plaintiff failed to include
sufficient

factual

allegations

13

to

state

a

hostile

work

environment

claim

under

Title

VII

or

a

discrimination

claim

under Title VII or Section 1983.
1.

Discrimination Claim

Plaintiff's Second Amended Complaint sufficiently pleads a

plausible Title VII and Section 1983 claim of sex discrimination
on the basis of Defendants' failure to promote Plaintiff.®

A

plaintiff may maintain an action for discrimination by alleging
facts that show:

(1) she is a member of a protected class; (2) she

applied and was qualified for a position for which the
employer was accepting applications; (3) despite her
qualifications, she was not hired; and (4) the
position remained open or was filled by another person
outside of her protected class.

Trask v. Sec'y, Dept. of Veteran Affairs, 822 F.3d 1179, 1191
(llth Cir. 2016).

Although

a plaintiff is not required to

allege facts to make out a classic McDonnell Douglas prima facie
case, she needs to ^^provide

^enough factual matter (taken as

true) to suggest' intentional [gender] discrimination."

Davis

V. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (llth Cir.

2008)

(quoting

Twombly,

550

U.S.

at

555).

In

this

case.

Plaintiff alleges that she is a gender nonconforming woman and
therefore belongs to a protected class.

Plaintiff also alleges

6 Plaintiff employs Section 1983 as a remedy for the same conduct attacked
under Title VII, In such a case "''the elements of the two causes of action
are the same.'" Richards v. Leeds Police Dep't, 71 F.3d 801, 805 (llth Cir.

1995) (quoting Cross v. State of Ala., 49 F.3d 1490, 1508 (llth Cir. 1995)).
Accordingly, the Court analyzes Plaintiff's two claims together.
14

Ms. Johnson, a gender conforming woman that had less experience
than Plaintiff, was selected for the Star Corporal promotion.

Defendants point out that Plaintiff fails to allege that

she applied for the Star Corporal position.
suggest

that

the

position

was

Yet the pleadings

unadvertised.

Under

such

circumstances, a plaintiff can make a claim of discrimination
due to failure to promote by showing that she was qualified for

the position in question.
977

F.2d

527,

533

(11th

Jones v. Firestone Tire & Rubber Co.,
Cir.

1992)

(citing

Carmichael

v.

Birmingham Saw Works, 738 F.2d 1126, 1133-43 (11th Cir. 1984)).

Because Plaintiff has alleged that she was more qualified for

the position than the candidate who was eventually selected, she
has stated a plausible claim of discrimination.
2.

Hostile Work Environment Claim

To allege a hostile work environment claim under Title VII,
an

employee

must

allege

harassment

^^sufficiently

severe

pervasive to alter the conditions of [her] employment."
State

Police

v. Suders, 542 U.S. 129, 131 (2004).

(1) that [she] belongs to a protected group; (2) that
[she] has been subject to unwelcome harassment; (3)
the

harassment

[was]

based

on

a

protected

characteristic of the employee . . . (4) that the
harassment was sufficiently severe or pervasive to
alter

the

terms

and

conditions

of

employment

and

create a discriminatorily abusive working environment;
and (5) that the employer is responsible for such
15

Pa.

This, in

turn, requires that the employee allege the following:

that

or

environment under either a theory of vicarious or of
direct liability.

Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir. 2009) (quoting
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th
Cir. 2002)).

Plaintiff's Second Amended Complaint fails to satisfy the
third and fourth elements of a hostile work environment claim.

As to the third element, although Plaintiff was asked about her

sexuality on two occasions, she does not allege specific facts

that any Defendant showed hostility toward her based on her
gender nonconformity.

Construing the allegation regarding Mr.

Moss's question about Plaintiff's dating life in the light most
favorable to Plaintiff, the question does not show bias towards

gender nonconforming women.

Similarly, Ms. Powers's question

asking Plaintiff whether she was a ''homosexual" also does not
demonstrate

bias

towards

considering

the

totality

gender

of

the

nonconforming

women.

circumstances.

Even

Plaintiff's

complaint fails to show that the other alleged incidents were
motivated by a bias against gender nonconforming women.
Turning

to

the

fourth

element,

the

employee

must

"subjectively perceive" the harassment as sufficiently pervasive
to alter the terms and conditions of employment.

Borden, Inc., 195 F.3d 1238, 1246 (11th

Mendoza

Cir. 1999) (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)).

16

v.

The

conduct must also be objectively severe and pervasive enough to
alter the terms and conditions of employment, considering all of
the circumstances.

Id.

Under the objective, ^'^fact intensive"

inquiry, courts consider four factors: ^Ml) the frequency of the
conduct;

(2)

conduct is
offensive

the

severity

physically

utterance;

of

the

threatening

and

(4)

conduct;
or

(3)

humiliating,

whether the

conduct

interferes with the employee's job performance."

whether
or

a

the
mere

unreasonably

Id.

Here, the allegations in the amended complaint show that

Plaintiff likely subjectively perceived Defendants' conduct as
sufficient to alter the terms and conditions of her employment,

evidenced by her HR complaint, EEOC filing, and initiating this
lawsuit.

Objectively, however, the alleged conduct does not

rise to the level of altering the terms and conditions of her

employment.

Here, the four factors guide the Court's analysis.

First, the frequency of the conduct alleged is too sporadic

to objectively alter the terms and conditions of Plaintiff's
employment.

Her complaint alleges that she was subject to at

most six incidents of harassment over almost fourteen months of

employment.

(Second Am. Compl.

9-19.)

The sporadic nature

of such harassment does not alter the nature and conditions of

employment.

See Mendoza, 195 F.Sd at 1249 (finding that five

incidents over an eleventh month period were too infrequent to
alter conditions of employment).
17

Second,

as to the

severity of the

harassment.

Plaintiff

alleges Mr. Moss engaged in a ^^systematic campaign of harassment
and sabotage" motivated by ^^bias against Plaintiff because of
her failing to live up to his notions of how a woman should
conduct herself."

(Second Am. Compl., SI 11.)

The only conduct,

however, that could possibly be construed as severe enough to
alter the terms and conditions of employment is the June 3 door

slamming

incident.

The

other

alleged

incidents

lack

the

severity to show, as a matter of law, that the workplace was

''permeated

with

discriminatory

intimidation,

ridicule

and

insult" such that Title VII is implicated. See Harris, 510 U.S.
at 21.

Third,

some

of

the

alleged

conduct

physically threatening or humiliating.
slamming

incident,

questions

can

be

considered

In particular, the door

regarding

Plaintiff's

dating

preferences, and having a less experienced employee promoted
over her may well be humiliating to some.
finds

that

these

incidents

do

not

rise

However, the Court
above

mere

offensive

utterances into conduct that is so severe and pervasive as to
alter the terms and conditions of Plaintiff's employment.

Finally, while the complaint does not explicitly allege how
the

conduct

Plaintiff's

complained
job

of

performance,

unreasonably
the

18

change

interfered
in

scheduling

with
and

promotion

of

unreasonable

a

less

qualified

interferences.

employee

may

Nevertheless,

be

treated

considering

as

all

of

the circumstances, the Court finds, as a matter of law, that

Plaintiff has not alleged sufficient facts to show the conduct
altered the terms and conditions of her employment.

A

comparison

of

this

case

to

a

recent

Northern District of Georgia is helpful.

case

from

the

In Johnson v. Fulton

Cnty., Ga., 2018 WL 2350172 (N.D. Ga. April 12, 2018), a gender

nonconforming

against

his

plaintiff

man

brought

former

alleged

a

hostile

employer

his

boss

and

(1)

work

environment

supervisor.

female

made

a

claim

The

comment

about

his

genitals, (2) told him not to wear a dress, (3) used code words
to refer to effeminate men, (4) complained of his hair style,

(5) referred to masculine men and the women who associated with
them

as

''tens"

while

effeminate

or

feminine

acting

men

as

"twos", and (6) made derogatory comments about the plaintiff's

high-pitched feminine voice, his feminine mannerisms, and his
feminine style of dress "any time" she had contact with him.
Id. at *11.

The Johnson Court found those allegations to be "thin and
create a close call" as to whether the plaintiff carried his
burden

on

a

Nevertheless,

motion

to

focusing

dismiss

on

[plaintiff] had contact with

the

under

Rule

allegation

[his boss], she
19

12(b)(6).

that

"any

Id.

time

made derogatory

comments

about

his

high-pitched

feminine

voice,

his feminine

mannerisms, and his feminine style of dress," the Court found

the

plaintiff

alleged

just

conceivable to plausible.

enough

to

nudge

the

claim

from

Id. (emphasis in original) (citing

Twombly, 550 U.S. at 570).

Here, however. Plaintiff's allegations do not rise to the
same

level.

comments

Her

that

plausible.

complaint

could

nudge

alleges

the

no

claim

similar

from

derogatory

conceivable

to

The only two comments complained of are an inquiry

into Plaintiff s dating life and a question asking whether she
is a ''homosexual," neither of which are as derogatory as direct

negative

comments

style.

The

characterized

actionable

as

about

voice,

alleged
"mere

comments
offensive

under Title VII.

Accordingly,

mannerisms,

Plaintiff s

are

dress,

more

utterances,"

and

hair

appropriately
which

are

not

See Mendoza, 195 F.3d at 1246.

Second

Amended

Complaint

fails

to

sufficiently plead a viable hostile work environment claim under
Title VII.

E. Qualified Immunity

Qualified immunity offers complete protection to government
officials

sued

in

their

individual

capacities

when

their

Plaintiff s claim for constructive discharge necessarily fails given that

she has not alleged a hostile work environment. See Bryant v. Jones, 575
F.3d 1281, 1298 (11th Cir. 2009) fEstablishing a constructive discharge
claim is a more onerous task than establishing a hostile work environment
claim.").

20

discretionary functions do not violate clearly established law.
Harlow

v.

Fitzgerald,

457

U.S.

800, 815-18

(1982).

However,

government officials sued in their official capacities may not
invoke the affirmative defense of qualified immunity.

Mitchell

V. Forsyth, 472 U.S. 511, 556 n.lO (1985) (citing Brandon v.

Holt,

469

U.S.

464

(1985)).

Because

the

defense

provides

immunity from suit, the Supreme Court has ^^repeatedly stressed"
the need to resolve immunity questions at the earliest stage of

litigation.

Pearson v. Callahan, 555 U.S. 223, 231-32 (2009).

To defeat qualified immunity a plaintiff must establish (1) that
the

official's

conduct

violated

a

statutory or constitutional

right and (2) the right was clearly established at the time of
the challenged conduct.

Randall v. Scott, 610 F.3d 701, 715

(11th Cir. 2010); see also Pearson, 555 U.S. at 232-36.
Here, Defendant Lisa Clark is sued in her official capacity
and

therefore

may

not

invoke

a

qualified

immunity

defense.

Mitchell, 472 U.S. at 556 n.lO (''Of course, an official sued in
[her] official capacity may not take advantage of a qualified

immunity defense.").

Defendant Charles Moss, however, is sued

in his individual capacity and may properly invoke the defense.
Thus, the Court must examine the complaint to determine whether

Plaintiff alleged sufficient facts to defeat qualified immunity.

21

With regard to the first prong of the qualified immunity
test. Plaintiff has sufficiently alleged that Mr. Moss's conduct

violated her statutory and constitutional rights under Title VII
and Section 1983, as shown in Section D.l, supra.

Therefore,

the determinative question is whether Plaintiff s right to have

her workplace be free from sex discrimination based on gender

nonconformity was clearly established at the time of the alleged
wrongdoing.

Clearly established law is defined as law that is well

enough recognized to provide officials with ^^fair notice" that

the alleged conduct is unlawful.
739 (2002).

Case law

Hope v. Pelzer, 536 U.S. 730,

is instructive in this determination,

especially when ^^some authoritative judicial decision decides a
case

by determining

Conduct' is

unconstitutional

without

tying that determination to a particularized set of facts, the
decision

on

'X

Conduct'

can

be

read

established a constitutional principle."

as

having

clearly

Vineyard v. Wilson,

311 F.3d 1340, 1351 (11th Cir. 2002).

In Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), the

Eleventh
someone

Circuit explicitly held that 'Miscriminating against
on

the

basis

of

his

or

constitutes sex-based discrimination."

applied

gender

nonconformity
22

sex

her

gender

nonconformity

Id. at 1316.

discrimination

The court

to

the

transgender

plaintiff s

Section

1983

claim,

but

noted

that

''[a]11 persons, whether transgender or not, are protected from
discrimination
1318-19.

on

the

This

discrimination

basis

of

decision

^^can

be

gender

on

read

as

stereotype."

gender
having

Id.

nonconformity

clearly

at
sex

established

constitutional principle" in the Eleventh Circuit.

a

Vineyard,

311 F.3d at 1351.

Moreover, in Glenn, the Eleventh Circuit relied on Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989),^ where the Supreme

Court held that discrimination based on gender stereotypes is
sex-based discrimination under Title VII.

that

case,

action

a female

because

she

employee

was too

suffered

Id. at 250-51.

an

^^macho," she

adverse

In

employment

^^overcompensated

for

being a woman," and she did not walk, talk, or dress in a
feminine manner.

Id. at 235.

The Court announced that ^^we are

beyond the day when an employer could evaluate employees by
assuming

or

insisting

that

associated with their group."

they

matched

the

stereotypes

Id. at 231.

Combined, these precedents show that an employee's right to
be free from sex discrimination based on gender nonconformity

was clearly established law at the time of Mr. Moss's alleged

8 Price Waterhouse was superseded by statute on other grounds, 42 U.S.C. §

2000e-5(g)(2)(B), as stated in Landqraf v. USI Film Prods., 511 U.S. 244, 251
(1994). The holding relevant here, however, remains clearly established law.
23

misconduct in 2013.

Eleventh

Case law from the

Circuit that espouses

broad

Supreme

Court and the

principles and specific

factual scenarios regarding gender stereotype sex discrimination
is sufficient to provide Mr. Moss with ^^fair notice" that such
conduct is unlawful.

dismiss,

the

Court

Thus, at this juncture, on a motion to

denies

qualified

immunity

to

Defendant

Charles Moss.

IV.

Plaintiff s

Second

CONCLUSION

Amended

Complaint

involves

the

same

facts and parties as her original complaint and thus relates
back

to

the

date

of

her

original

complaint.

Therefore,

Plaintiffs claims are not barred by the statute of limitations.

Furthermore, allowing Plaintiff to make these amendments is in
line with the Eleventh Circuit's mandate.

While

Plaintiff fails to state

environment,
claim

of

she

does

a

claim for

hostile

allege facts that support a

discrimination

under

Section

1983

and

work

plausible

Title

VII.

Finally, neither Lisa Clark nor Charles Moss can be granted
qualified immunity.
to dismiss

(doc.

Upon due consideration. Defendant's motion

53) IS GR2^TED IN PART AND DENIED IN PART.

Plaintiff's claim for a hostile work environment under Title VII

is hereby DISMISSED WITH PREJUDICE, while her claim of unlawful
sex

discrimination

under

Section
24

1983

and

Title

VII

shall

proceed.

The

parties

are

directed

to

submit

a

proposed

scheduling order within fourteen days.

ORDER ENTERED at Augusta, Georgia this <^^S^^day of
September, 2018.

:hief judge

UNITED ^TATES DISTRICT COURT
SOilXHEftN DISTRICT OF GEORGIA

25