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Davis v. Infinity Insurance Co.

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

June 12, 2018

STEPHANIE DAVIS, Plaintiff,
v.
INFINITY INSURANCE CO., et al., Defendants.

          MEMORANDUM OPINION AND ORDER [1]

          JOHN H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.[2] (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).

         On 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).

         On 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

         I. Standard of Review

         Rule 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.

         To that 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, the-defendant-unlawfully-harmed-me accusation.” 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).

         II. Background[3]

         This is 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. (Id).

         Despite its policy, Infinity retained a number of Caucasian, non-Hispanic employees. (Id. at ¶ 15). These employees were not fluent in Spanish.[4] (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).

         In her 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).

         III. Analysis

         Defendants’ 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).[5] (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).

         A. Sufficiency of factual allegations

         The 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.

         In any 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);[6] 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.

         But the 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).[7]

         These 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 ...


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