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)

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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

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