United States District Court, M.D. Alabama, Northern Division
DONNELL ELLISON, TONNY BLAKE, and JOHN KNIGHTEN, JR., Plaintiffs,
ANTHONY PETER ATTALLA and STRONG STEEL OF ALABAMA, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE
the court is Defendants' Rule 12(b)(6) motion to dismiss
(Doc. # 7) and Plaintiffs' Brief in Opposition (Doc. #
13). Because the complaint (Doc. # 1) alleges facts
sufficient to state each of Plaintiffs' claims, the
motion to dismiss is due to be denied.
STANDARD OF REVIEW
evaluating a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), the court must take the facts
alleged in the complaint as true and construe them in the
light most favorable to the plaintiff. Resnick v. AvMed,
Inc., 693 F.3d 1317, 1321-22 (11th Cir. 2012). To
survive Rule 12(b)(6) scrutiny, “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) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “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.” Id.
(citing Twombly, 550 U.S. at 556). The
“plausibility” requirement does not require a
plaintiff to prove her claim at the pleading stage; it simply
calls for enough facts to raise a reasonable expectation that
discovery could reveal evidence of the defendant's
liability. Twombly, 550 U.S. at 556; Chaparro v.
Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012).
Donell Ellison, Tonny Blake, and John Knighten, Jr. are black
males who applied to work at Strong Steel of Alabama, LLC,
when they saw its advertisement for jobs starting at $15.00
to $16.00 per hour. (Doc. # 1, at 2, 4-5.) Plaintiffs began
work for Strong Steel as skilled laborers or framers between
March and July 2016. (Doc. # 1, at 2, 4.) Contrary to the
advertised starting salary, Plaintiffs were paid between
$9.00 and $10.00 per hour. (Doc. # 1, at 2, 4.) In or about
August 2016, Plaintiffs learned that several white employees
were receiving higher wages for the “same work.”
(Doc. # 1, at 3, 4-5.) Additionally, in September 2016, a
noose was discovered hanging in the workshop. (Doc. # 1, at
December 30, 2016, Plaintiffs filed charges with the Equal
Employment Opportunity Commission (EEOC) alleging they were
discriminated against based on race. (Doc. # 1, at 3-5.) On
January 30, 2017, Plaintiffs were called into their
boss's - Defendant Attalla's - office “and told
they were being terminated. During their meeting with
Attalla, he placed the EEOC charges on his desk for
[Defendants] to see.” (Doc. # 1, at 3-5.) Plaintiffs
brought this suit alleging racial discrimination and
retaliation, in violation of 42 U.S.C. § 1981. (Doc. #
1, at 5.)
claim that even if all the facts in the complaint are true,
Plaintiffs still fail to state a plausible claim. (Doc. # 7,
at 1.) The court disagrees. Paragraphs 1-35 of the complaint
(Doc. # 1) contain sufficient factual content to draw a
“reasonable inference” that Defendants are liable
for the alleged misconduct. Twombly, 550 U.S. at
556. Specifically, Plaintiffs support their race
discrimination and retaliation claims with the following
factual allegations: Plaintiffs are members of a protected
class; Plaintiffs applied for jobs that were advertised as
paying $15.00 to $16.00 per hour; Defendant Attalla told at
least one Plaintiff that his pay would be increased to the
advertised hourly wage after 90 days, but 90 days came and
went without the promised increase; Plaintiffs were in fact
paid between $9.00 and $10.00 per hour; white workers doing
the same work (five of whom are identified by name) were paid
more than Plaintiffs; a noose was discovered hanging in the
workshop; and finally, four weeks after Plaintiffs filed EEOC
charges, their boss called them to his office, placed those
EEOC charges on the desk in front of them, and fired them.
(Doc. # 1, at 2-6; Doc. # 13, at 4-5.) These allegations
provide the requisite detail to demonstrate that
Plaintiffs' claims of racial discrimination and
retaliation are plausible.
Defendants challenge whether the complaint sufficiently
alleges that they engaged in intentional racial
discrimination in terminating Plaintiffs' employment.
They contend that Plaintiffs' allegations that similarly
situated white employees were treated more favorably are too
conclusory from which to infer intentional discrimination.
facie claim of racial discrimination under § 1981
requires a plaintiff to allege “that the defendant
intended to discriminate on the basis of race.”
Jackson v. BellSouth Telecommc'ns., 372 F.3d
1250, 1270 (11th Cir. 2004); Tarvin v. DirecTV, No.
2:15-CV-01237-AKK, 2016 WL 6246813, at *3 (N.D. Ala. Sept.
13, 2016) (“In the intentional discrimination context,
a claim has facial plausibility when the plaintiff pleads
facts showing that the employer acted with discriminatory
intent, or treated similarly situated employees in the
non-protected class more favorably.”). The complaint
identifies by name five Strong Steel employees - who were
white, who were paid by the hour, who performed the
“same or similar work” as Plaintiffs, some of
whom shared the same job title as Plaintiffs, and who were
paid more than Plaintiffs. (Compl. ¶¶ 10, 19, 25,
30.) To be sure, Plaintiffs could have done more to bolster
this aspect of the complaint. The complaint's legal
conclusion that the five white employees were
“similarly situated” to Plaintiffs does leave the
reader with some factual questions. Were they similarly
situated merely by their position or title (which is alleged)
or also by their experience and training (which is not
alleged)? When were the white comparators hired? What jobs
were advertised? Although the allegations pertaining to
similarly situated comparators walks the Twombly
line between “conceivable” and “plausible,
there are enough facts to “nudge” the racial
discrimination claims to the plausible side. See
Twombly, 550 U.S. at 570; Resnick, 693 F.3d at
as to the retaliation claims, the United States Supreme Court
has held that § 1981 covers claims for retaliation.
See CBOCS West, Inc. v. Humphries, 553 U.S. 442
(2008). To establish a prima facie case of retaliation under
§ 1981, a plaintiff must show that: (1) “he
engaged in statutorily protected activity”; (2)
“he suffered an adverse employment action”; and
(3) “he established a causal link between the protected
activity and the adverse action.” Bryant v.
Jones, 575 F.3d 1281, 1307-08 (11th Cir. 2009).
Plaintiffs allege that four weeks after they filed EEOC
charges, their supervisor called them into his office,
“placed the EEOC Charges on his desk” for
Plaintiffs “to see, ” and fired them. (Compl.
¶¶ 15, 21, 27.) These allegations suffice under
Twombly by showing a four-week temporal proximity
between their supervisor's knowledge of their protected
activity (i.e., the filing of the EEOC charges) and
the adverse employment actions (i.e., the
terminations). Cf. Farley v. Nationwide Mut. Ins.
Co., 197 F.3d 1322, 1337 (11th Cir. 1999) (holding that
a seven-week time frame between the employer's knowledge
of the plaintiff's filing of an EEOC charge and his
firing satisfied the causal nexus for purposes of a
retaliation claim under the Age Discrimination in Employment
Act); see also McCullough v. Bd. of Regents of the Univ.
Sys. of Georgia, 623 Fed.Appx. 980, 983 (11th Cir. 2015)
(Although plaintiff “need not plead a prima facie case
to survive dismissal” under Rule 12(b)(6), the
complaint's allegations “must be sufficient to
‘raise a right to relief above the speculative
also argue that the claims are subject to dismissal because
Plaintiffs fail to allege that their terminations were not
“for cause” or were not the result of a
“50% workforce reduction.” (Doc. # 7, at 9.)
Defendants' argument is misguided because to survive a
Rule 12(b)(6) motion, the complaint need not rebut a
non-retaliatory or non-discriminatory basis for termination.
Those inquiries are part of the second and third stages of
the McDonnell Douglas framework and are more
appropriate for consideration at the summary judgment stage.
See Surtain v. Hamlin Terrace Found., 789 F.3d 1239,
1246 (11th Cir. 2015) (“McDonnell
Douglas's burden-shifting framework is an
evidentiary standard, not a pleading requirement.”
(citing Swierkiewicz v. Sorema N.A., 534 U.S. 506,
experience and common sense raise a reasonable expectation
that Plaintiffs' claims are plausible and that discovery
could reveal evidence of ...