United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
a civil action filed by the Plaintiff, Cynthia Michelle
Oliver, against the YMCA of Greater Birmingham (the
“YMCA”), Stan Law, and Lane Vines. (collectively
the “Defendants”). Against the YMCA alone, the
Complaint sets out the following claims: age discrimination
in violation of both the Age Discrimination in Employment Act
of 1967, 29 U.S.C. §§ 621-634 (the
“ADEA”) and the Alabama Age Discrimination in
Employment Act, Ala. Code §§ 25-1-20 through
25-1-29 (the “AADEA”) (Count One); “age
harassment/hostile work environment” in violation of
the ADEA and AADEA (Count Two); “sex
discrimination” in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e through
2000e-17 (“Title VII”) (Count Three); “sex
harassment/hostile [work] environment” in violation of
Title VII (Count Four); “sexual orientation
discrimination” in violation of Title VII (Count Five);
“sexual orientation harassment/hostile [work]
environment” in violation of Title VII (Count Six);
“race discrimination” in violation of Title VII
(Count Seven); “sexual orientation harassment/hostile
[work] environment” in violation of Title VII (Count
Eight); “retaliation” in violation of the ADEA,
AADEA, and Title VII (Count Nine); and the Alabama state law
claim of “negligent and wanton hiring, training,
supervision, and retention” (Count Twelve). Against the
YMCA and Vines together, the plaintiff sets out the following
Alabama state law claims: “libel and slander”
(Count Ten); “defamation” (Count Eleven);
“interference with contractual or business
relations” (Count Thirteen); and “invasion of
privacy” (Count Fourteen). Finally, against all of the
Defendants, the Plaintiff sets out the Alabama state law
claim of “intentional infliction of emotional
distress” (Count Fifteen).
case comes before the Court on the Defendants'
“Motion To Dismiss Counts Ten Through Fifteen of the
Complaint” (the “Motion”). (Doc. 13). The
Motion is brought pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, and generally claims that the
“Plaintiff's threadbare, conclusory allegations in
support of each cause of action are clearly insufficient to
state a claim under applicable law.” (Doc. 13 at 2).
For the reasons stated herein, the Motion will be
GRANTED in part and DENIED in
the Federal Rules of Civil Procedure require only that the
complaint provide “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a). However, to survive a motion to dismiss
brought under Rule 12(b)(6), a complaint must “state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)
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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556)
(“Iqbal”). That is, the complaint must
include enough facts “to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555 (citation and footnote omitted). Pleadings that contain
nothing more than “a formulaic recitation of the
elements of a cause of action” do not meet Rule 8
standards, nor do pleadings suffice that are based merely
upon “labels or conclusions” or “naked
assertion[s]” without supporting factual allegations.
Id. at 555, 557 (citation omitted).
claim has been stated adequately, however, “it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Id. at 563
(citation omitted). Further, when ruling on a motion to
dismiss, a court must “take the factual allegations in
the complaint as true and construe them in the light most
favorable to the plaintiff.” Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citing
Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308
(11th Cir. 2006)).
IN THE COMPLAINT
Complaint alleges, in pertinent part:
21. Michelle Oliver is a 55-year-old Caucasian female, born
on May 30, 1961.
22. Oliver began her employment in 1985 with YMCA's
predecessor company, Sports First, and had accrued a total of
thirty-one (31) years of service.
23. Oliver was District Vice President of the YMCA of Greater
Birmingham and Executive Director of the YMCA Mountain Brook
24. As District Vice President, Oliver was responsible for
leading and supervising the Executive Directors of the
Hoover, Downtown Birmingham, Hargis, and Alabaster YMCA
25. As Executive Director of the Mountain Brook branch,
Oliver was responsible for overall leadership and operation
of the branch, including facility management, membership and
financial development, policy implementation, employee
staffing, and customer service leadership.
26. Oliver was a salaried employee and classified as exempt
27. Between 1985 and 2015, Oliver routinely worked between
40-50 hours a week depending on staffing requirements,
workload, and the season of the year.
28. Oliver received exemplary performance reviews, both in
her role as District Vice President and as Executive Director
of the Mountain Brook branch.
29. In 2007-2008, Oliver witnessed Defendant Lane Vines
frequenting the office of one of her female subordinates.
30. Defendant Vines did not have any business-related reason
to be visiting alone with this employee so frequently, or
having private, closed-door meetings.
31. The employee was Oliver's direct subordinate and a
subordinate to Vines.
32. Oliver reported Vines'[s] conduct to the CEO at the
time out of concern that Vines'[s] relationship with the
subordinate was inappropriate.
33. Oliver is unaware as to whether Defendant investigated
Vines'[s] conduct or did anything to correct it.
34. In February 2013, Stan Law (African American) became the
YMCA's Chief Executive Officer.
35. During Law's first year, he had no complaints about
36. Toward the end of 2013, the position of Chief Operating
Officer became available.
37. Oliver was qualified for the position and applied for it.
38. Law selected Defendant Vines for the position over
Oliver, despite Oliver's qualifications of having more
managerial and administrative experience.
39. In the fall of 2015, Oliver complained to Defendant Vines
that the female tennis pro at her facility was making less
money than the male tennis pro at the Greystone facility.
40. The female tennis pro had more seniority with the YMCA
than the male tennis pro.
41. Vines told Oliver that he did not want her to think it
was a “male/female issue” but that he would look
42. To Oliver's knowledge there was no investigation.
43. Defendants failed to correct the unequal pay.
44. After becoming CEO, Law sought to change YMCA programs to
be more about community outreach than about health and
45. The majority of YMCA's funding comes from members and
corporate partners who pay membership fees to belong to
state-of-the-art fitness facilities.
46. Law's change negatively impacted the financial
success of the YMCA, including Oliver's Mountain Brook
branch, because there was less funding to upgrade facilities
47. Defendants, by and through Law, created a policy and
preference for diverting funds from predominately Caucasian
facilities to more predominantly African American facilities.
48. Law intentionally made improvements to facilities that
have small membership numbers but are primarily African
American, whereas he cut funding and improvements to larger
facilities that he perceived as predominately Caucasian.
49. Oliver's Mountain Brook branch had a predominately
Caucasian membership due to its predominately Caucasian
50. Law referred to Oliver's Mountain Brook branch as a
“country club.” 51. Defendants, by and through
Law, denied Oliver improvements to her facility based on her
race and the race of most of the members of that facility.
52. Because the Mountain Brook facility nonetheless required
much needed improvements, Oliver sought funding on her own.
When she was successful in securing improvements or funding
for her facility, Law refused to acknowledge her efforts.
53. In 2015, although the Mountain Brook branch did not meet
budget, Oliver managed to increase the branch's financial
performance by $100, 000 over 2014.
54. Law and Vines nonetheless began scrutinizing Oliver's
55. Defendants did not scrutinize African-American and male
Executive Directors, whose branches were performing more
poorly than the Mountain Brook branch.
56. Defendants did not hold the African-American and male
Executive Directors to the same high performance standards as
57. Caucasian managers were singled out for minor
infractions, whereas African Americans were not.
58. One African-American Executive Director was investigated
for dishonesty and breach of fiduciary duty.
59. The investigation concluded that the Execute Director was
guilty of tampering with employees' payroll.
60. Law refused to terminate the African-American Executive
Director and allowed him to continue in his position.
61. Law would fraternize with African-American members of
management and exclude Caucasian managers.
62. Law hosted a private party at his home following a
national YMCA event that was held in Birmingham, excluding
Caucasian members of management.
63. Defendants applied dress code policies unequally between
African Americans and Caucasians.
64. Caucasians were disciplined or counseled for having
exposed tattoos or piercings, whereas African-American
employees were not.
65. Defendants threatened to terminate Oliver if she did not
remove her dreadlocks, which she kept in a clean,
66. Defendants allowed African Americans to wear dreadlocks
without threatening their employment.
67. Oliver's dress or hairstyle had never been an issue
during her previous thirty (30) years of employment.
68. Oliver complained to [the] YMCA's Human Resources
Manager on numerous occasions about her hostile environment.
69. Defendants failed to investigate or remedy any of
70. In March 2015, Oliver complained and referenced the
71. The HR manager asked Oliver if she wanted her to initiate
a formal investigation into Oliver's complaints, since
Oliver had specifically used the word
72. Oliver thought about the question for a moment and
replied, “No, ” fearing she would lose her job.
73. The HR Manager failed to reassure Oliver that Defendants
would not retaliate against her for making the complaints or
having them investigated.
74. Instead, the HR Manager advised Oliver that she should
remove her dreadlocks and stop wearing cargo pants if she did
not want to be fired by upper management.
75. In June 2015, Oliver, who is homosexual, married her
76. Law and Vines thereafter became even more openly hostile
77. Law and Vines made derogatory comments about Oliver's
sexual orientation and made the terms and conditions of her