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Ewing v. Moore

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

August 13, 2018

TAMMY EWING, et al., Plaintiffs,
SARAH MOORE, et al., Defendants.


          L. Scott Coogler United States District Judge.

         Plaintiffs, Tammy Ewing ("Ewing"), Denise Crawford ("Crawford"), and Martie Patton ("Patton"), brought suit pursuant to Title VII and § 1983 against Defendants for discrimination surrounding their terminations. Before the Court is Defendants', Sarah Moore and Lloyd Moore (collectively "the Moore defendants"), Alabama Credit Union Administration ("ACUA"), and ACUA Board Members, Steve Nix, Joey Hand, Linda Cencula, Charles Faulkner, Greg McClellan, and Greta Webb-Williams (collectively the "ACUA Board Members")[1] (collectively the "Defendants") motion to dismiss Plaintiffs' second amended complaint (doc. 37) and Defendants' renewed motion to dismiss for want of prosecution (doc. 58).[2] Plaintiffs have filed no opposition to either motion. For the reasons stated below, Defendants' motions (docs. 37 & 58) are due to be granted.

         I. Background[3]

         Plaintiffs, Ewing, Crawford and Patton, are all females who are former employees of the Alabama One Credit Union ("Credit Union"). Ewing began her employment with the Credit Union in February 1995, Crawford in April 1990, and Patton in January 1984. On August 27, 2015, by and through vote of the ACUA Board Members, Defendants "approved, authorized and directed the Administrator [Defendant Sarah Moore], ex parte and without notice, to appoint [the ACUA] as conservator and immediately take possession and control of the business and assets of the Credit Union." (Doc. 34 at 5.) That same day, the ACUA sent letters to Plaintiffs notifying them that

[E]ffective immediately upon the conservatorship of the Credit Union and appointment of the Conservator, the Conservator exercised its authority to terminate any and all employment agreements between you and the Credit Union. Pursuant to Alabama law, any provision in such contract or contracts which provides for damages or cancellation fees upon termination shall not be binding on the Conservator or the Credit Union, and neither the Conservator, nor the Credit Union shall be liable to you for damages.

(Doc. 34-1 at 3-4; 34-2 at 5-6; 34-3 at 3-4) (emphasis added) (citing Ala. Code § 5- 17-8.) All letters were signed by Sarah Moore as "Administrator of the ACUA as Conservator of Alabama One Credit Union." (See e.g. doc. 34-1 at 5.) In all of Plaintiffs' Counts, they name as defendants the ACUA, which acted as a conservator of the Credit Union for a period of time. They also assert claims against Sarah Moore, who acted as the ACUA Administrator during the conservatorship, and Lloyd Moore, who acted as the Assistant ACUA Administrator during the conservatorship. Allegedly, the firing of Plaintiffs was part of a process by which Sarah Moore would follow Lloyd Moore's recommendations for immediate firing. According to Plaintiffs, the process resulted in a pattern and practice of terminating female employees from the Credit Union's upper management and filling those positions with male employees. Plaintiffs name the ACUA Board Members as defendants only in Counts IV, V and VI and aver that on August 27, 2015 by and through a vote of the ACUA Board Members, all Defendants approved, authorized and directed Sarah Moore to appoint the ACUA as conservator and immediately take possession and control of the business and assets of the Credit Union. Plaintiffs allege this caused the ACUA to become Plaintiffs' employer when it became the conservator of the Credit Union by way of the Order of Conservatorship.[4]

         Both Ewing and Crawford bring individual claims of retaliation under Title VII and § 1983. Ewing bases her retaliation claim upon her expulsion from membership in the Credit Union which occurred after the conservatorship had concluded, while Crawford contends she was terminated on account of an internal complaint she had lodged to the Credit Union regarding sexual harassment which occurred prior to the conservatorship.

         Plaintiffs' were originally represented by counsel, but are no longer. The Court granted Defendants' motion to disqualify (doc. 39) for the reasons set forth in its Memorandum of Opinion issued April 19, 2018 (doc. 52). The Court has given Plaintiffs ample time in which to secure new counsel, and given them the benefit of a hearing in which the Court explained their need to respond to the motion to dismiss within thirty days of the hearing. At the hearing, the Court provided Plaintiffs with copies of the motion and the brief in support. Plaintiffs have neither secured counsel, nor provided any response to the motion to dismiss (doc. 39). The Court presumes they now proceed pro se. Plaintiffs have not conducted any discovery in this case nor have they responded to Defendants' requests for admissions[5] or fulfilled their obligations regarding initial disclosures.[6] Additionally, Plaintiffs did not appear for depositions that were timely noticed and served. (See Doc. 58-2, non-appearances of Ewing, Patton, and Crawford.) The August 1, 2018 cutoff for discovery has passed.

         II. Standards of Review

         Pursuant to Federal Rule of Civil Procedure 41(b), "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Fed.R.Civ.P. 41(b). This Court's inherent power to manage its docket provides authority for the dismissal of a case with prejudice. Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962) ("The authority of a federal trial court to dismiss a plaintiff's action with prejudice because of [their] failure to prosecute cannot seriously be doubted. The power to invoke this sanction is necessary to prevent undue delays in the disposition of pending cases and to avoid congestion in the District Courts."); Carnegie-Mellon University v. Cohill, 484 U.S. 343, 360 (1988) ("Courts have historically possessed an inherent power to dismiss suits for discretionary reasons such as failure to prosecute." citing Link). The Eleventh Circuit recognized this power in Eades v. Alabama Dept. of Human Resources, 298 Fed.Appx. 862, 863 (11th Cir. 2008) ("District courts possess the ability to dismiss a case with prejudice for want of prosecution based on two possible sources of authority: Fed.R.Civ.P. 41(b) or their inherent authority to manage their dockets." (citing Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005))).

         A pleading that states a claim for relief must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). However, the facts alleged in the complaint must be specific enough that the claim raised is "plausible." See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.") (emphasis added). A claim for relief is plausible on its face when the complaint's "factual content . . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Resnick v. AvMed, Inc., 693 F.3d 1317, 1325 (11th Cir. 2012) (quoting Iqbal, 556 U.S. at 678). Conclusory statements of law may "provide the framework of a complaint," but the plaintiff is required to support them with "factual allegations." Iqbal, 556 U.S. at 679.

         "[Unsupported conclusions of law or of mixed fact and law have long been recognized not to prevent a Rule 12(b)(6) dismissal." Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003) (quoting Marsh v. Butler Cty., 268 F.3d 1014, 1036 n. 16 (11th Cir. 2001)). And "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.'" Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Therefore, the U.S. Supreme Court suggested that courts adopt a "two-pronged approach" when considering motions to dismiss: "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.'" Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 664). Unless a plaintiff has "nudged [his] claims across the line from conceivable to plausible," the complaint "must be dismissed." Id.

         In reviewing the complaint, this Court "draw[s] on its judicial experience and common sense." Iqbal, 556 U.S. at 679. Nonetheless, "[a] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the facts alleged] is improbable." Twombly, 550 U.S. at 556. This Court considers only "the face of the complaint and attachments thereto" in order to determine whether plaintiff states a claim for relief. Starship Enters. of Atlanta, Inc. v. Coweta Cty., 708 F.3d 1243, 1252 n.13 (11th Cir. 2013). Generally, the complaint should include "enough information regarding the material elements of a cause of action to support recovery under some 'viable legal theory.'" Am. Fed'n of Labor & Cong, of Indus. Orgs v. City of Miami, 637 F.3d 1178, 1186 (11th Cir. 2011) (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683-84 (11th Cir. 2001)).

         Documents which are incorporated as exhibits to the complaint may be considered without converting a Fed.R.Civ.P. 12(b) motion to dismiss into a Fed.R.Civ.P. 56 motion for summary judgment. Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002); see also Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). "A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes." Fed.R.Civ.P. 10(c). "Where there is a conflict between allegations in a pleading and exhibits thereto, it is well settled that the exhibits control." Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007) (quoting Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812, 813 (5th Cir. 1940)). Because Plaintiffs have included as exhibits their Equal Employment Opportunity Commission ("EEOC") charges and their Notices of Rights to Sue letters, the Court considers them in this Opinion; where the attached documents conflict with allegations in the complaint, the Court construes the exhibits as controlling. (See Doc. 34 Exs. 1-6.) Additionally, the Court "may consider a document attached to a motion to dismiss without converting the motion into one for summary judgment if the attached document is (1) central to the plaintiff's claim and (2) undisputed. In this context, 'undisputed' means that the authenticity of the document is not challenged." Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). Because the Court has concluded that all exhibits attached to Defendants' motions to dismiss are central to the Plaintiffs' claims and their authenticity cannot be reasonably challenged, the Court takes them into consideration in this Opinion.

         III. Discussion

         In their motion to dismiss (doc. 37) Defendants seek to dismiss with prejudice: (1) the Title VII claims in their entirety: Counts I, II and III; (2) the ACUA and the ACUA Board Members from the Section 1983 claims: Counts IV, V, and VI; and (3) Sarah Moore and Lloyd Moore from the § 1983 retaliation claims: Counts V and VI. If the Court grants Defendants' motion (doc. 37) based upon the merits, the only remaining claim would be the § 1983 claim, Count IV, against Sarah Moore and Lloyd Moore. However, the remaining Count IV is due to be dismissed based upon Plaintiffs' failure to prosecute their case and their refusal to allow discovery to defendants. As such, all claims are due to be dismissed with prejudice and the case closed.

         A. The Title VII claims: Counts I, II and III

         Plaintiffs' assert that the legal effect of the conservatorship was that the ACUA became their employer. This is a legal conclusion not entitled to an assumption of truth. At the outset of their complaint, Plaintiffs aver that they are former employees of Alabama One Credit Union. Pursuant to Alabama Code § 5-17-8, the ACUA is an independent Alabama state agency which supervises and regulates state-licensed credit unions. The ACUA's Enabling Act gives it (and those acting on its behalf) the authority to act in the name of the Credit Union. See Ala. Code § 5-17-8(1). Sarah Moore, as Administrator, exercised power under the conservatorship to "terminate any and all employment agreements between [Plaintiffs] and the Credit Union." (Docs. 34-1 at 3, 34-2 at 5; 34-3 at 3.)

         Title VII of the Civil Rights Act of 1964 makes it unlawful for "an employer . . . to discriminate against any [employee] with respect to . . . sex," 42 U.S.C. § 2000e-2(a)(1), and defines "employer" as "a person . . . who has fifteen or more employees," § 2000e(b). The applicable standard surrounding the question of who, precisely, qualifies as an employer under Title VII is stated in the Eleventh Circuit case of Peppers v. Cobb County, Georgia as fol lows:

Consistent with the remedial purposes of Title VII, the federal courts have interpreted the term "employer" liberally. Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1359 (11th Cir. 1994). Thus, in order to decide whether an entity is a qualified employer, we have asked this basic question: "who (or which entity) is in control of the fundamental aspects of the employment relationship that gave rise to the claim." Lyes v. City of Riviera Beach, 166 F.3d 1332, 1345 (11th Cir. 1999) (en banc). An examination of this question requires consideration of the totality of the employment relationship. Welch v. Laney, 57 F.3d 1004, 1011 (11th Cir. 1995) (citing Wirtz v. Lone Star Steel Co., 405 F.2d 668, 669-70 (5th Cir. 1968)). Among the basic factors we consider are these: (1) how much control the alleged employer exerted on the employee, and (2) whether the alleged employer had the power to hire, fire, or modify the terms and conditions of the employee's employment. Welch, 57 F.3d at 1011; Llampallas, 163 F.3d at 1243.

835 F.3d 1289, 1297 (11th Cir. 2016). It is alleged that the "ACUA, in addition or in the alternative, Sarah Moore and/or Lloyd Moore, made the final decisions regarding the terminations of the employment of Plaintiffs and the continued employment of others at the Credit Union." (Doc. 34 at 9.) Though Defendants, as the alleged employers of Plaintiffs, provided notice of their terminations, they did so by virtue of the power given them by conservatorship, in the name of the Credit Union and clearly delineated that it was the employment contracts between the Plaintiffs and the Credit Union that were being terminated. Additionally, because the notice of termination was given the same day that the Credit Union was conserved, Defendants would not have had control over Plaintiffs' means and manner of work during their employment with the Credit Union. The facts as alleged do not compel a finding that ACUA became Plaintiffs' employer by virtue of the Order of Conservatorship or that the Moore defendants became Plaintiffs' employers.

         i. Numerosity requirement under Title VII

         Defendants argue in their motion to dismiss without waiving its argument that the ACUA never employed Plaintiffs, that all three Title VII claims fail because Plaintiffs do not and cannot allege the sufficient number of employees (15) to meet the "employee-numerosity requirement" under the statute. Arbaugh v. Y & H Corp.,546 U.S. 500, 515-16 (2006) (holding that "Title VII's 15-employee threshold is an element of a plaintiff's claim for relief. . . ."). Plaintiffs' EEOC complaints were dismissed because "the responden[s] ...

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