Equal Employment Opportunity Commission v. The Patty Tipton Company

Filing 10

OPINION AND ORDER: It is ordered that Dft's 4 Motion to Dismiss is DENIED. Signed by Judge Karl S. Forester on 2/3/2012. (SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

CIVIL ACTION NO. 5:11-CV-278-KSF
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION

vs.

PLAINTIFF

OPINION AND ORDER

THE PATTY TIPTON COMPANY

DEFENDANT
********

This matter is before the Court on the motion of Defendant to dismiss the action. For the
reasons discussed below, the motion will be denied.
I.

BACKGROUND
The Equal Employment Opportunity Commission (“EEOC”) brought this action pursuant to

Title VII of the Civil Rights Act of 1964, as amended, and Section 102 of the Civil Rights Act of
1991. 42 U.S.C. § 2000e-5(f)(1) and (3); 42 U.S.C. § 1981a. According to the Complaint, Megan
Woodard applied for employment as a temporary employee with the Defendant, The Patty Tipton
Company (“Tipton”), in September 2010. Woodard is a practicing member of a fundamentalist
Baptist church, and her religion prohibits women from wearing pants or other male attire. Tipton
denied Woodard employment when she requested for religious reasons to wear a skirt to work,
rather than the black pants required by a dress code. [DE 1, ¶ 7].
Tipton moves to dismiss the complaint on the grounds that this Court lacked subject matter
jurisdiction, that Plaintiff failed to state a claim upon which relief can be granted, and that Plaintiff
failed to join indispensable parties. [DE 4-1, p. 1]. It argues that the place of employment was the
Kentucky Horse Park, and the employer was The Patina Group (“Patina”) who contracted to
provide food and beverage services for the World Equestrian Games (“WEG”). It claims that the
dress code requiring everyone to wear black pants was established by Patina or WEG, not Tipton.

It states that Woodard did not file a timely complaint against Patina or WEG, although she should
have known that Tipton was merely providing temporary employees to Patina. Acknowledging that
timely filing is a condition precedent rather than a jurisdictional requirement, Tipton argues
equitable tolling should not apply here because the failure to meet the deadline did not arise from
circumstances beyond the litigant’s control.

Instead, Tipton urges strict adherence to the

procedural requirements set by Congress and dismissal of the complaint. Id. at 2-4.
Next Tipton argues the Complaint fails to state a claim because Tipton did not control the
dress code and had no ability to accommodate Woodard’s request. Id. at 5. Finally, Tipton
contends that Patina and/or WEG are indispensable parties in this action, because they are the
business entities responsible for the allegedly discriminatory dress code.

Since conditions

precedent have not been met, joinder of Patina or WEG at this late date is not feasible.
Accordingly, Tipton urges that equity supports dismissal of the case because the absentee parties
are indispensable. It argues that only Patina or WEG could present evidence regarding the
reasons for the dress code and whether an accommodation would result in undue hardship to the
employer. Id. at 6-8.
EEOC responds that Tipton argues facts and attaches an exhibit that are outside the
pleadings. Accordingly, it urges the Court to exclude all such facts or, alternatively, to convert the
motion to one for summary judgment. [DE 8, pp. 3-4]. With respect to subject matter jurisdiction,
the EEOC notes that Tipton “concedes that conditions precedent are not jurisdictional.” Id. at 5.
It argues that Tipton does not deny being subject to Title VII. A letter from Tipton during the
administrative investigation said it “simply explained to her that unless she was able to wear the
appropriate uniform required for this position, she would not be able to work for our company during
the World Equestrian Games.” Id. EEOC claims this letter makes it clear that Tipton was the
employer under Title VII. Id. at 6. Moreover, it contends that a formal employment relationship
between the plaintiff and the defendant is not required. A plaintiff is protected if the defendant

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“significantly affects access of any individual to employment opportunities.” Id. at 6. It notes there
is no evidence that Patina or WEG were aware of Woodard’s application, much less that they
would not have accommodated Woodard’s religious beliefs if asked. Id. Woodard’s complaint was
timely filed “against the only entity that denied her employment.” Id. at 7.
Next, EEOC responds that the complaint satisfies the notice pleading requirements of Fed.
R. Civ. P. 8(a) and that nothing more is required. Id. at 8-9. Finally, EEOC claims Tipton’s
indispensable party argument is without merit. Tipton admitted it refused to hire Woodard, and
there “is no evidence that any other entities were involved in that decision.” Id. at 10.
In reply, Tipton argues that EEOC was aware of its status as a staffing agency and also
knew that others were responsible for the dress code, which was established for safety reasons,
rather than a discriminatory purpose. [DE 9-1, p. 2]. Under the circumstances, It claims that the
only purpose for filing the complaint was to harass Tipton into agreeing to “extortionate settlement
demands.” Id. at 3. It claims it made a legitimate effort to settle the claim before the complaint was
filed, but the EEOC investigator demanded damages for Ms. Woodard’s “loss of valuable
experience for a specific educational program.” Id. at 4. The EEOC claimed that employment with
the WEG would have provided “invaluable pre-veterinary school experience.” Tipton argues that
it is “laughable” to believe that “serving food at a place where there were horses would somehow
give Woodard any experience whatsoever in her quest to be accepted to veterinary school.” Id.
at 5. Tipton claims the EEOC knew the complaint was frivolous when filed and that it is in violation
of Rule 11. Id. at 6.
II.

ANALYSIS
A.

Standard for Motion to Dismiss

“Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally come in
two varieties: a facial attack or a factual attack.” O’Bryan v. Holy See, 556 F.3d 361, 375 (6th Cir.
2009). A facial attack on the complaint questions merely the sufficiency of the pleading, and the

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factual allegations are taken as true. Id. at 376. A plaintiff must demonstrate that the complaint
alleges a “substantial” federal claim. “[T]he plaintiff can survive the motion by showing any
arguable basis in law for the claim made. Musson Theatrical, Inc. v. Federal Express Corp., 89
F.3d 1244, 1248 (6th Cir. 1996). Alternatively, if the motion contests the facts underlying subject
matter jurisdiction, the court “must weigh the evidence” in order to determine whether it has the
power to hear the case. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004).
To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007);Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). The Iqbal/Twombly
standard “is also designed to screen out cases that, while not utterly impossible, are ‘implausible.’”
Courie v. Alcoa Wheel & Forged Products, 577 F.3d 625, 629 (6th Cir. 2009). “Factual allegations
must be enough to raise a right to relief above the speculative level.” Twombly,550 U.S. at 555.
See also Association of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th
Cir. 2007) (same).
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009) elaborated on the factual
requirement as follows:
As the Court held in Twombly, the pleading standard Rule 8 announces does not
require “detailed factual allegations,” but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation. A pleading that offers “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action will not
do.” Nor does a complaint suffice if it tenders “naked assertions” devoid of “further
factual enhancement.” ...
The plausibility standard is not akin to a “probability requirement,” but it asks for
more than a sheer possibility that a defendant has acted unlawfully. 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. at 1949-50. If the “complaint does not contain any factual allegations sufficient to plausibly
suggest” each essential element of the averred violation, it does not contain enough “factual
content to ‘nudge’ [the claim] ‘across the line from conceivable to plausible’” and must be

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dismissed. Iqbal, 129 S.Ct. at 1953. In ruling upon a motion to dismiss for failure to state a claim
pursuant to Fed. R. Civ. P. 12(b)(6), all of a plaintiff’s allegations are presumed true, and the
complaint is construed in the light most favorable to the plaintiff. Hill v. Blue Cross and Blue Shield
of Michigan, 409 F.3d 710, 716 (6th Cir. 2005).
B.

Discussion

First, the Court is disregarding evidence outside of the record and declining to convert the
motion to dismiss into a motion for summary judgment. The Court can consider public records
without converting the motion, and it will consider the exhibits from the administrative proceedings.
Wyser-Pratte Management Co., Inc. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir. 2005) (holding
“the court may also consider other materials that are integral to the complaint, are public records,
or are otherwise appropriate for the taking of judicial notice”). See also Bovee v. Coopers &
Lybrand C.P.A., 272 F.3d 356, 360-361 (6th Cir. 2001) (“Court may consider the full text of the SEC
filings, ... and statements ‘integral to the complaint,’ even if not attached, without converting the
motion into one for summary judgment....”).
When the Complaint is construed in the light most favorable to the plaintiff, as this Court
must do, dismissal is not warranted. The Complaint alleges that Woodard’s sincerely held religious
beliefs precluded her from wearing pants. She asked that her beliefs be accommodated by
allowing her to wear a skirt to work. Tipton refused to accommodate those beliefs and denied her
employment because she requested to wear a skirt. Accordingly, the EEOC alleges that Tipton
denied Woodard equal employment opportunities, and her employment status was adversely
affected because of her religion. [DE 1].
These allegations are sufficient to allege a “substantial” federal claim. “A federal claim is
substantial unless ‘prior decisions inescapably render it frivolous.’” Musson, 89 F.3d at 1248. Title
VII provides that it is an “unlawful employment practice” for an employment agency “to fail or refuse

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to hire ... any individual ... because of such individual’s ... religion....” 42 U.S.C. § 2003-2(a)(1).
Thus, a facial challenge to jurisdiction fails.
Tipton appears to be making a factual challenge that it is not a proper defendant and,
therefore, the court lacks jurisdiction because conditions precedent regarding service on other
defendants have not been met. Tipton concedes, however, that conditions precedent are not
jurisdictional. [DE 4-1, p. 3]. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).
Accordingly, this factual attack fails.
In its motion to dismiss for failure to state a claim, Tipton argues that it did not control the
dress code and was not able to accommodate Woodard’s request. Tipton had options, however,
that would have at least provided an opportunity for an accommodation. There is no evidence that
Tipton requested an accommodation from Patina or WEG or provided Woodard information so she
could make the request herself. Tipton’s letter to the EEOC suggests that no consideration was
given to the request for an accommodation. “[W]e simply explained to her that unless she was able
to wear the appropriate uniform required for this position, she would not be able to work for our
company during the World Equestrian Games.” [DE 8-1, p. 3]. There is no evidence that Patina
or WEG were aware of Woodard’s application or her request for an accommodation on the dress
code.
Even if it could be argued that Tipton was not Woodard’s employer, the motion still lacks
merit. In Christopher v. Stouder Memorial Hospital, 936 F.2d 870 (6th Cir. 1991), the plaintiff was
denied limited privileges that would allow her to work as a private scrub nurse for doctors
performing surgery at the hospital. Id. at 871-73. She sued the hospital alleging discrimination.
Stouder Hospital argued that the court lacked subject matter jurisdiction because the doctors were
the employers of scrub nurses. The Sixth Circuit disagreed, saying: “Title VII does not require a
formal employment relationship between the plaintiff and the defendant. Rather, a plaintiff is
protected if the defendant is one ‘who significantly affects access of any individual to employment
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opportunities.’” Id. at 875. In support, it cited Gomez v. Alexian Bros. Hosp., 698 F.2d 1019, 1021
(9th Cir. 1983), which held that a doctor stated a claim under Title VII when a hospital denied him
staff privileges although he was not an employee of the hospital. In the present case, it was Tipton
who denied Woodard the employment opportunity; thus, Tipton is a proper defendant over whom
this Court has subject matter jurisdiction.
The Rule 12(b)(6) motion to dismiss must also be denied. The complaint should be
construed in a light most favorable to the plaintiff, accepting its allegations as true and finding all
reasonable inferences in its favor. Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008).
The complaint only needs to plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic, 550 U.S. at 570. In a discrimination case, “it is not appropriate to require a
plaintiff to plead facts establishing a prima facie case.” Swierkiewicz v. Sorema, N.A., 534 U.S.
506, 511 (2002). “[T]he ordinary rules for assessing the sufficiency of a complaint apply.” Id.
The focus of Tipton’s argument is, once again, that it is not a proper defendant because it
did not control the dress code and could not accommodate Woodard’s request. [DE 4-1, p. 5].
Contrary to Tipton’s argument, there is no evidence that any entity other than Tipton committed
unlawful discriminatory conduct. Woodard asked to wear a skirt to work for religious reasons, and
Tipton said no. It told her that if she could not “wear the appropriate uniform required for this
position, she would not be able to work for our company during the World Equestrian Games.” [DE
8-1, p. 3].

As EEOC argues in its response, “Woodard filed a timely charge of religious

discrimination against the only entity that denied her employment, Defendant The Patty Tipton
Company. When informed of Woodard’s religious beliefs, Defendant denied her a reasonable
accommodation.” [DE 8, p. 7]. This Court agrees with EEOC. It has stated a plausible claim
against Tipton, and the motion to dismiss will be denied.
Finally, Tipton’s motion to dismiss for failure to join an indispensable party should also be
denied. Tipton argues that Patina and WEG are required parties because they are the parties
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responsible for the allegedly discriminatory dress code, and the court cannot accord complete relief
among the existing parties. [DE 4-1, pp. 6-7]. While Patina and WEG may be the entities
responsible for the dress code, the evidence is that only Tipton applied it in a discriminatory
manner. Moreover, “Rule 19 calls for a pragmatic approach; simply because some forms of relief
might not be available due to the absence of certain parties, the entire suit should not be dismissed
if meaningful relief can still be accorded.” Smith v. United Brotherhood of Carpenters and Joiners
of America, 685 F.2d 164, 166 (6th Cir. 1982). The plaintiff is the master of its complaint. Curry
v. United States Bulk Transport, Inc.. 462 F.3d 536, 543 (6th Cir. 2006). EEOC has chosen to sue
only Tipton. The relief it requested – enjoining Tipton from discrimination based on religion,
requiring Tipton to adopt policies to accommodate the religious beliefs of its employees, and paying
damages to Woodard – may be accorded between the present parties. It is not necessary to
consider whether joinder is feasible under Rule 19(b), as Patina and WEG are not required parties
under Rule 19(a). The fact that it may be more difficult for Tipton to defend the action while
standing alone, is no basis to dismiss the complaint.
III.

CONCLUSION
IT IS ORDERED that Defendant’s motion to dismiss [DE 4] is DENIED.
This February 3, 2012.

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