United States District Court, N.D. Alabama, Northeastern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case is before the court on Defendants' Motion to
Dismiss. (Doc. # 7). The Motion is fully briefed
(see Docs. # 7, 10-11), and it is ripe for review.
After careful review, and for the reasons explained below,
Defendants' Motion (Doc. # 7) is due to be denied.
Surge Staffing, LLC and Surgeforce, LLC jointly own and
operate a temporary employment company located in Scottsboro,
Alabama. (Doc. # 1 at ¶ 13). Defendants hired Plaintiff
in August 2016 as a temporary worker. (Id. at ¶
18). On August 4, 2016, Defendants assigned Plaintiff to a
facility operated by Kotobukiya/Treves North America, Inc.
(“KTNA”). (Id. at ¶ 19).
working at the KTNA facility, Plaintiff alleges that a KTNA
employee, Gustavo Torres, sexually harassed her.
(Id. at ¶ 20). Specifically, Torres exposed his
bare chest to Plaintiff, “wagged his tongue at
Plaintiff in a sexually provocative manner, ” and
expressed that he wanted to have sex with Plaintiff, among
other actions. (Id. at ¶¶ 21-25). On
August 11, 2016, Torres told Plaintiff that she would not
advance at the facility unless he approved it. (Id.
at ¶ 26). Plaintiff reported Torres' conduct to
another KTNA employee and a KTNA human resources
representative. (Id. at ¶¶ 27-28).
KTNA's human resources representative directed Plaintiff
to discuss the harassment with the branch manager of
Defendants' Scottsboro office, Tina McLain. (Id.
at ¶ 29).
provided McLain with a written statement, expressed her
desire not to return to KTNA, and asked about other available
job opportunities. (Id. at ¶¶ 30-31).
McLain told her that no other opportunities were available
and suspended her while the investigation into her complaint
was pending. (Id. at ¶¶ 32-33).
Thereafter, Plaintiff called Defendants' Scottsboro
office and inquired about available assignments.
(Id. at ¶ 36). Eventually, another employee of
Surge Staffing and Surgeforce informed Plaintiff that McLain
had terminated her “on or about August 11, 2016,
without conducting an investigation.” (Id. at
November 2016, Plaintiff filed a charge with the Equal
Employment Opportunity Commission (“EEOC”)
against Surge Staffing and KTNA. (Doc. # 1-1). In January
2018, the EEOC issued her a right-to-sue letter. (Doc. # 1-2
at 2). In this action, Plaintiff raises one claim of
retaliation under Title VII of the Civil Rights Act for her
termination. (Doc. # 1 at ¶¶ 40-46).
Standard of Review
Federal Rules of Civil Procedure require that a complaint
provide “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 complaint must include
enough facts “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Pleadings that
contain nothing more than “a formulaic recitation of
the elements of a cause of action” do not meet Rule 8
standards, nor do pleadings suffice that are based merely
upon “labels and conclusions” or “naked
assertion[s]” without supporting factual allegations.
Id. at 555, 557. In deciding a Rule 12(b)(6) motion
to dismiss, courts view the allegations in the complaint in
the light most favorable to the non-moving party. Watts
v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir.
survive a motion to dismiss, a complaint must “state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although “[t]he plausibility standard is not akin to a
‘probability requirement, '” the complaint
must demonstrate “more than a sheer possibility that a
defendant has acted unlawfully.” Id. A
plausible claim for relief requires “enough fact[s] to
raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550
U.S. at 556.
considering a motion to dismiss, a court should “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.'” Kivisto v. Miller, Canfield,
Paddock & Stone, PLC, 413 Fed.Appx. 136, 138 (11th
Cir. 2011) (quoting Am. Dental Ass'n v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task
is context specific and, to survive the motion, the
allegations must permit the court based on its
“judicial experience and common sense . . . to infer
more than the mere possibility of misconduct.”
Iqbal, 556 U.S. at 679. If the court determines that
all of the well-pleaded facts, accepted as true, do not state
a claim that is plausible, the claims are due to be
dismissed. Twombly, 550 U.S. at 570.
present one argument for dismissing the Title VII claim
against both of them and a separate argument for dismissing
the Title VII claim against Surgeforce in particular. Both
arguments are unavailing.
Plaintiffs' Retaliation Claim May Proceed Even if Torres
Was Employed byan Entity ...