United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE
Stephanie Davis (“Davis”) initiated this action
against Infinity Insurance Co., Infinity Property and
Casualty Corp., (collectively referred to as
“Infinity”) and Robin Adams (collectively
“Defendants”) on July 1, 2015, and amended her
complaint two days later. (Docs. 1 & 3). On August 14,
2015, Defendants moved to dismiss, or, in the alternative,
for a more definite statement, alleging the complaint was a
shotgun pleading. (Doc. 9). Davis then moved for leave to
amend her complaint. (Doc. 23). On August 29, 2016, the
undersigned denied Davis’s motion for leave to amend as
futile, but permitted her to file another motion to amend
consistent with the memorandum opinion and order. (Doc. 40).
September 28, 2016, Davis moved for leave to file a second
amended complaint, (doc. 41), and the undersigned granted
Davis’s motion, (doc. 42). (See doc. 43
(second amended complaint)). Defendants again moved for
dismissal or a more definite statement, again contending the
complaint was a shotgun complaint. (Doc. 44). The undersigned
denied the motion to dismiss, but granted the motion for a
more definite statement. (Doc. 50).
October 6, 2017, Davis filed her third amended complaint.
(Doc. 51). Defendants have now moved for partial dismissal of
that complaint. (Doc. 52). The motion is fully briefed and
ripe for review. (Docs. 52, 53 & 54). For the reasons
stated below, the motion to dismiss is GRANTED IN
PART and DENIED IN PART
Standard of Review
12(b)(6), Fed. R. Civ. P., permits dismissal when a complaint
fails to state a claim upon which relief can be granted.
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations and internal quotation marks omitted). A complaint
states a facially plausible claim for relief “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. (citation
omitted). The complaint must establish “more than a
sheer possibility that a defendant has acted
unlawfully.” Id.; accord Bell Atlantic v.
Twombly, 550 U.S. 544, 555 (2007) (“Factual
allegations must be enough to raise a right to relief above
the speculative level.”). Ultimately, this inquiry is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
end, under Federal Rule of Civil Procedure 8(a)(2), a
pleading must contain “a short and plain statement of
the claim showing the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it
demands more than an unadorned,
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). Mere “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action” are insufficient. Iqbal, 556 U.S. at
678. (citations and internal quotation marks omitted).
“Nor does a complaint suffice if it tenders
‘naked assertions]’ devoid of ‘further
factual enhancement.’” Id. (citing
Bell Atl Corp., 550 U.S. at 557).
the third motion to dismiss filed in this case, and the facts
are mostly familiar. In September 2014, Infinity announced a
termination and hiring plan that required current employees
and new hires to be fluent in Spanish (the “bilingual
policy”). (Doc. 51 at ¶ 12). At the time Davis, a
non-Hispanic African-American who is not fluent in Spanish,
was employed by Infinity as a Policy Services Specialist.
(Id. at ¶ 11). In September 2014, Davis
received a letter from Infinity stating it was terminating
her and other employees who were not fluent in Spanish.
(Id. at ¶ 13). Two days later, Davis met with
two Infinity executives who informed her she was being
terminated because she was not fluent in Spanish.
its policy, Infinity retained a number of Caucasian,
non-Hispanic employees. (Id. at ¶ 15). These
employees were not fluent in Spanish. (Id). These
retained employees were all less senior and less productive
than Davis; some had also received formal discipline, which
Davis had not. (Id. at ¶¶ 15-17).
third amended complaint, Davis asserts the following claims:
(1) Title VII disparate impact termination (national origin)
claim against Infinity Defendants; (2) Title VII disparate
treatment (national origin) termination claim against
Infinity Defendants; (3) Title VII and 42 U.S.C. § 1981
disparate treatment termination (race) claim against Infinity
Defendants; (4) Title VII and 42 U.S.C. § 1981
retaliation in benefits against all Defendants; (5) ERISA:
breach of contract against all Defendants; and (6) ERISA:
interference with rights against all Defendants. (Doc. 51).
previous motions to dismiss challenged the complaint as a
shotgun pleading, and the undersigned agreed with that
characterization. (See docs. 40 & 50). This time
they take a different tack, contending inconsistent facts in
Davis’s third amended complaint render her claims
implausible. Specifically, they argue the fact Infinity
retained Caucasian, non-Hispanic employees who did not speak
Spanish, (doc. 51 at ¶¶ 15 & 61), calls into
question the existence of the bilingual policy Davis alleges,
(doc. 51 at ¶¶ 12-13, 21, 29-30 & 61). (Doc. 52
at 5). This, they say, demands dismissal of Davis’s
disparate impact and disparate treatment claims, (Counts I,
II, and III) under Rule 12(b)(6). (Id. at 5-8).
Defendants also argue Davis should be sanctioned for failing
to include in her previous complaints that the retained
Caucasian employees were not Spanish speakers. (Id.
at 8-9). In response, Davis urges that the purportedly
inconsistent facts are reconcilable by drawing the inference
that Defendants’ racial discrimination shielded the
non-Spanish-speaking, non-Hispanic Caucasian employees from
the bilingual policy, which would otherwise have been
enforced against them. (Doc. 54 at 10-14).
Sufficiency of factual allegations
fulcrum of Defendants’ arguments against Davis’s
national origin discrimination claims is that the bilingual
policy could not have existed based on the facts Davis
alleges, thus invalidating Counts I and II. However,
Defendants also argue Davis’s racial discrimination
claim is meritless since she was terminated because
of the neutral bilingual policy they claim is
nonexistent, so her attempts to compare her performance to
Caucasian comparators to support Count III is misplaced.
(Doc. 52 at 7). Left unsaid is why the undersigned should
infer that the bilingual policy did not exist for
the two counts the absence of a bilingual policy would
defeat, and then infer that it did exist for the
count the policy’s existence would arguably undermine.
event, it is unnecessary to infer that the bilingual policy
existed because the third amended complaint contains direct
factual allegations to support its existence. Davis initially
describes the bilingual policy as one that “conditioned
hiring and continued employment on being fluent in
Spanish,” (doc. 51 at ¶ 12), and there is some
obvious tension between this paragraph and her later
allegation that “Infinity terminated Stephanie Davis
but continued to employ a number of Caucasian, non-Hispanic
employees in Birmingham, Alabama . . . [who] were not fluent
in Spanish.” (Id. at ¶ 15). However,
Davis alleges: (1) Infinity explicitly announced it was
implementing the policy, (id. at ¶ 12); (2)
Infinity sent Davis a letter stating she and other
non-Spanish-speaking employees were being terminated,
(id. at ¶ 13); and (3) Davis met with Infinity
executives who told her that she was being terminated because
of her lack of fluency in Spanish, (id.). Although
these allegations may be somewhat inconsistent with the
allegation that Infinity retained non-Spanish-speaking
Caucasian employees, Defendants offer no reason why that
inconsistency should be resolved by concluding there was no
policy at all, rather than that Infinity ignored its policy
by making race-based exceptions for the Caucasian
employees-the inference Davis suggests.
fact the complaint contains facts supporting the existence of
the bilingual policy does not necessarily mean Davis’s
claims proceed. Setting aside Defendants’ contentions
the bilingual policy did not exist at all, their remaining
arguments are: (1) Infinity could not have intended to
discriminate against non-Hispanics through the bilingual
policy because it intentionally retained non-Hispanics, so
Davis has no viable national origin disparate treatment
claim, (doc. 52 at 6-7); and (2) Davis’s race disparate
treatment claim is due to be dismissed because she was
terminated pursuant to the neutral bilingual policy,
(id. at 7).
arguments rest mainly on the principle that factual
allegations that eliminate an element of a legal theory
foreclose that theory. To that end, Defendants rely heavily
on the logic of Thomas v. Kamtek, Inc., 143
F.Supp.3d 1179 (N.D. Ala. 2015), in which, at summary
judgment, the court observed that the plaintiff’s
complaint contained multiple claims that required but-for
causation that should have been dealt with at the motion to
dismiss stage. (See doc. 52 at 3-5; doc. 55 at 3-4).
Davis correctly notes her Title VII national origin
discrimination claims and Title VII and § 1981 and race
discrimination claims do not require but-for causation, (doc.
54 at 3), unlike the ADEA claims in Thomas. See
Univ. of Texas Southwestern Med. Ctr. v. Nassar, 570
U.S. 338, 343 (2013) (“[When a]n employee alleges
status-based discrimination under Title VII . . . [s]o-called
but-for causation is not the test. It suffices instead to
show that the motive to discriminate was one of the
employer's motives”); Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998)
(Title VII claims and § 1981 claims “have the same
requirements of proof and use the same analytical
framework”). Defendants do not try to ...