Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kuemper v. Aardvark's Answering Service, Inc.

United States District Court, N.D. Alabama, Northeastern Division

March 31, 2015



STACI G. CORNELIUS, Magistrate Judge.

This case involves claims of discrimination on the basis of race and religion, retaliation, and related state law claims. Presently pending are the motions to dismiss filed by defendants, Automation Personnel Services, Inc. ("Automation") (Doc. 26) and American Telemessaging Corporation d/b/a Ameritel ("Ameritel") (Doc. 31). Defendants contend plaintiff, Constance Kuemper, has failed to state a claim upon which relief can be granted under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6). Alternatively, Defendants contend Kuemper should be required to re-plead the complaint, which the undersigned construes as requesting a more definite statement under Rule 12(e). As explained below, Defendants' motions will be granted in part and denied in part. Specifically, the motions to dismiss will be denied, but the motions for a more definite statement will be granted and Plaintiff will be required to re-plead her complaint.


Plaintiff filed the original complaint on December 26, 2012. (Doc.1). Following an order to show cause why the matter should not be dismissed under Rule 4(m), Automation was eventually served and on August 2, 2013, filed a motion to dismiss. (Doc. 14). On August 26, 2013, Plaintiff filed a motion to amend the complaint to correctly name Ameritel. (Doc. 21). The previously assigned magistrate judge granted the motion to amend, mooting Automation's motion to dismiss. (Nov. 7, 2013 Docket Entry). Automation filed the now-pending motion to dismiss the amended complaint on November 15, 2013. (Doc. 26). Ameritel joined the motion to dismiss on December 20, 2013, adopting and incorporating Automation's arguments. (Doc. 31). The motions to dismiss have been fully briefed and are ripe for adjudication.


To survive a motion to dismiss for failure to state a claim on which relief may be granted pursuant to Rule 12(b)(6), "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 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. ( citing Twombly, 550 U.S. at 556). "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." Id. "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 Twombly, 550 U.S. at 557).

"Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Rule 8 "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, 677 (2009) (quoting Twombly, 550 U.S. at 555). "[L]abels and conclusions, " "a formulaic recitation of the elements of a cause of action, " and "naked assertion[s] devoid of further factual enhancement" are insufficient. Id. at 678 (quoting Twombly, 550 U.S. at 555, 557) (internal quotation marks omitted).


The amended complaint alleges Plaintiff, who is white, was employed by Defendants from February 2010 through August 2010. (Doc. 22 at 2-3, 5). Without further explanation, the amended complaint also states Defendants operated as Plaintiff's joint employers. (Doc. 22 at 2). While the Plaintiff does not specify the religion to which she adheres, she apparently is not a Christian. (Doc. 22 at 3; see Doc. 30 at 10 (describing Plaintiff's beliefs as "differing... from the Christian religion")).

Regarding religious discrimination, the amended complaint alleges "[m]anagement and co-workers asked Plaintiff about her religious beliefs." (Doc. 22 at 3). Plaintiff also states she "was required to memorize a weekly Bible verse" and her hours were cut in retaliation for complaining about this requirement. ( Id. ). When Plaintiff complained to management, the unnamed manager responded that the weekly Bible verse was a "good idea" because "it was a Christian company." ( Id. at 4-5). The complaint further alleges "[o]ther employees [inquired if Plaintiff] sacrificed animals as part of her religious practices." ( Id. at 3).

Regarding racial discrimination, Plaintiff generally alleges she "was treated more harshly than the African American employees" and "[t]here were frequent derogatory comments about white people made in the office, such as they can't stand white people." (Doc. 22 at 3-4). Plaintiff contends she was disciplined more harshly than black employees for alleged dress code violations and tardiness. ( Id. at 3-5). Plaintiff also contends Defendants gave promotions to similarly situated black employees and allowed black employees to work preferred shifts. ( Id. at 4). Additionally, Plaintiff states she was blamed for leaving an outside door open when, in fact, a black employee was the culprit. ( Id. ).

On August 6, 2010, Plaintiff called into work to report that she would be absent due to her daughter's illness. ( Id. at 5). Plaintiff returned to work the following day, but her supervisor permitted her to leave early to continue caring for her daughter. ( Id. ). When Plaintiff reported to work on August 8, "office staff had been told that Plaintiff" had missed work without permission. ( Id. ). The complaint alleges "Plaintiff was pretextually terminated on or about August 10, 2010." ( Id. ).


The amended complaint names Automation and Ameritel as defendants and asserts seven claims against them, collectively. However, the factual allegations do not reveal which Defendant is the target of each particular allegation. Plaintiff does identify certain individuals as managers, owners, or supervisors, but she does not allege any specific conduct or actions by these individuals. (Doc. 22 at 3). The sole exception is Serena Clark, a black employee the amended complaint alleges was promoted to supervisor during Plaintiff's tenure and instituted the weekly ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.