United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF OPINION
Scott Coogler United States District Judge.
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") (collectively the
"Defendants") motion to dismiss Plaintiffs'
second amended complaint (doc. 37) and Defendants'
renewed motion to dismiss for want of prosecution (doc.
Plaintiffs have filed no opposition to either motion. For the
reasons stated below, Defendants' motions (docs. 37 &
58) are due to be granted.
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
(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
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
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 or
fulfilled their obligations regarding initial
disclosures. 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
Standards of Review
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
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.
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."
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)).
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.
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.
The Title VII claims: Counts I, II and III
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
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
Numerosity requirement under Title VII
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] ...