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Long v. Surge Staffing, LLC

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

August 17, 2018

SHENIA LONG, Plaintiff,
SURGE STAFFING, LLC, et al., Defendants.



         This 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.

         I. Background[1]

         Defendants 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).

         While 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).

         Plaintiff 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 ¶ 37).

         In 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).

         II. Standard of Review

         The 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. 2007).

         To 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.

         In 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.

         III. Analysis

         Defendants 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.

         A. Plaintiffs' Retaliation Claim May Proceed Even if Torres Was Employed by an Entity ...

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