United States District Court, S.D. Alabama, Southern Division
KATHY J. LOONEY, Plaintiff,
SIMPLY AROMA LLC d/b/a Purely, et al., Defendants.
MEMORANDUM OPINION AND ORDER
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
action is before the Court on the motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) (Doc. 9) filed by
the Defendants. By previous order (Doc. 10), pursuant to
Federal Rule of Civil Procedure 12(d), the parties were given
notice that the Court intended to treat part of the motion as
a motion for summary judgment under Federal Rule of Civil
Procedure 56. The Plaintiff, Kathy J. Looney, has timely
filed a response (Doc. 17) in opposition to the motion, and
the Defendants have timely filed a reply (Doc. 18) to the
response. The motion is now under submission (see
Doc. 10) and is ripe for disposition. Upon consideration, the
Court finds that the Defendants' motion (Doc. 9) is due
to be GRANTED under Rule 12(b)(6). As such,
to the extent the Court has partially treated the motion as
one for summary judgment under Rule 56, it is due to be
DENIED as moot. However, Looney will be
given leave to file an amended complaint to address some of
the deficiencies identified herein.
deciding a motion to dismiss under Rule 12(b)(6) for
“failure to state a claim upon which relief can be
granted, ” the Court must construe the complaint in the
light most favorable to the plaintiff, “accepting all
well-pleaded facts that are alleged therein to be
true.” E.g., Miyahira v. Vitacost.com,
Inc., 715 F.3d 1257, 1265 (11th Cir. 2013). “Fed.
R. Civ. P. 8(a)(2) requires that a pleading contain ‘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.” Am. Dental Ass'n v. Cigna
Corp., 605 F.3d 1283, 1288 (11th Cir. 2010) (quotation
omitted). “ ‘While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.' ”
Id. at 1289 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167
L.Ed.2d 929 (2007)). A complaint's “
‘[f]actual allegations must be enough to raise a right
to relief above the speculative level ... on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).' ” Id. (quoting
Twombly, 550 U.S. at 555). “[T]o survive a
motion to dismiss, a complaint must now 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).
While this “plausibility standard is not akin to a
‘probability requirement' at the pleading stage,
… the standard ‘calls for enough fact to raise a
reasonable expectation that discovery will reveal
evidence' of the claim.” Id. (quoting
Twombly, 550 U.S. at 556).
“ ‘the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable
to legal conclusions.' ” Id. at 1290
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Under the plausibility standard, “
‘where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not
“show[n]”-“that the pleader is entitled to
relief.” ' ” Id. (quoting
Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P.
8(a)(2))). Iqbal “suggested that courts
considering motions to dismiss adopt a ‘two-pronged
approach' in applying these principles: 1) eliminate any
allegations in the complaint that are merely legal
conclusions; and 2) where there are well-pleaded factual
allegations, ‘assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief.' ” Id. (quoting Iqbal,
556 U.S. at 679). “[C]ourts may infer from the factual
allegations in the complaint ‘obvious alternative
explanation[s], ' which suggest lawful conduct rather
than the unlawful conduct the plaintiff would ask the court
to infer.” Id. (quoting Iqbal, 556
U.S. at 679 (quoting Twombly, 550 U.S. at 567)).
complaint (Doc. 1) contains the following well-pleaded
allegations, which the Court accepts as true for purposes of
the present motion: Beginning in March 2015, Looney was
employed by Defendant Simply Aroma LLC d/b/a Purely
(“Purely”) as an administrative assistant and
customer service representative. (Doc. 1 at 2, ¶ 10).
Defendant Thai LNU,  a Purely warehouse technician, would rub
his penis against Looney's buttocks, grab her waist when
he walked by her, and commit other unwelcomed advances and
touching. (Id., ¶¶ 9, 11). On September 2,
2016, while at an office get-together, Thai LNU grabbed
Looney's buttocks with both hand and pulled her to his
body. (Id. at 3, ¶ 12). Immediately, Looney
pushed him away and said “No!” very loudly; Thai
LNU raised his hands, snickered, and said
“Sorry.” (Id.). On September 6, 2016,
Looney reported the harassment to Defendant Kelly Love,
Purely's acting Vice President. (Id. at 2 - 3,
¶¶ 8, 13). On September 9, 2016, Defendant Andrew
Khong, Purely's owner, yelled at Looney and told her to
leave, in response to her complaints about the harassment.
(Id., ¶¶ 7, 14).
on the foregoing allegations, Looney alleges causes of action
for sexual harassment in violation of Title VII of the Civil
Rights Act of 1964 and 42 U.S.C. § 1983.
Title VII Claims against the Individual Defendants
Andrew Khong, Kelly Love, and Thai LNU (collectively,
“the Individual Defendants”) argue that
Looney's Title VII claims against them are due to be
dismissed because Title VII is “inapplicable to
individuals.” (Doc. 9 at 2).
capacity suits under Title VII are…inappropriate. The
relief granted under Title VII is against the
employer, not individual employees whose actions
would constitute a violation of the Act.” Busby v.
City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (per
curiam). “The only proper individual defendants in a
Title VII action would be supervisory employees in their
capacity as agents of the employer.” Hinson v.
Clinch Cty., Ga. Bd. of Educ., 231 F.3d 821, 827 (11th
Cir. 2000) (citing Busby, 931 F.2d at 772).
Accordingly, the Rule 12(b)(6) motion to dismiss is due to be
GRANTED as to the individual-capacity Title
VII claims against the Individual Defendants.
has also sued each of the Individual Defendants in his or her
“official capacity.” (See Doc. 1 at 1 -
2, Style & ¶¶ 7 - 8). It is doubtful that Thai LNU
can be sued in his “official capacity” under
Title VII, as the complaint does not indicate that he was a
Purely “supervisory employee.” Regardless, as
will be explained in the following section, Looney's
Title VII sexual harassment claim against Purely is due to be
dismissed for failure to plausibly plead an essential element
of the claim. Thus, the Title VII claims against the
Individual Defendants in their “official
capacities” as agents of Purely are due to be dismissed
for the same reason.
Title VII ...