United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF OPINION
SCOTT COOGLER, UNITED STATES DISTRICT JUDGE
Michelle Poague (“Poague”), Sherita Holley
(“Holley”), Lakendria Coleman
(“Coleman”), Katarda Bishop
(“Bishop”), and Lorrie Acker
(“Acker”) (collectively “Plaintiffs”)
bring claims against Defendants Huntsville Wholesale
Furniture d/b/a Ashley Furniture Homestore
(“Ashley”), Taylor Swinney
(“Swinney”), Jason Seavers
(“Seavers”), and Daniel Hannan
“Defendants”) arising from Plaintiffs'
employment at Ashley's Tuscaloosa store. Before this
Court are Hannan, Seavers, Swinney, and Ashley's
respective motions to dismiss. (Docs. 25, 26, 28, & 29.)
Plaintiffs have timely filed their opposition. The motions are
fully briefed and ripe for review. For the reasons stated
below, Hannan's Motion to Dismiss (doc. 25) is due to be
granted, Seavers's Motion to Dismiss (doc. 26) is due to
be denied, Swinney's Motion to Dismiss (doc. 28) is due
to be denied, and Ashley's Motion to Dismiss (doc. 29) is
due to be granted in part and denied in part.
is a home furniture store with a number of locations
throughout Alabama. During the time in question, Plaintiffs
and Defendants Swinney and Seavers worked at Ashley in
Tuscaloosa. Swinney was the Store's General Manager, and
Seavers was Ashley's Director of Stores. Poague, Holley,
Coleman, and Acker worked as product specialists at Ashley in
Tuscaloosa. Product specialists at Ashley were paid an hourly
rate plus commissions. In addition to their regular duties,
product specialists are regularly required to hand out
flyers, but they are not allowed to clock in while they hand
out flyers. (Doc. 18 ¶ 79.) Additionally, Acker was once
asked to come in and complete a sale, but was told she would
not be allowed to clock in while she completed the sale.
Bishop worked as a cashier at Ashley, but she was employed
through Express Temp Agency (“Express”). Bishop
was paid a flat rate of ten dollars an hour.
allege that Swinney and other male supervisors and co-workers
at Ashley created a hostile work environment by consistently
making sexually charged remarks and explicit statements
towards employees and customers at Ashley. Swinney is alleged
to have called attractive women, including customers,
“Omahas” or “IHOPs.” (Id.
¶¶ 32, 136.) Swinney is also alleged to have called
the Store's Assistant Manager James Rigsby
(“Rigsby”) “raw-dog” or
“raw-jaw” because Rigsby did not use condoms.
(Id. ¶ 35.) On one occasion Swinney called
Bishop his work wife, and on another he threw money at Bishop
and told her he was going to “make it rain.”
(Id. ¶¶ 162, 165.) On another occasion,
Swinney grabbed his crotch in front of Bishop and asked her
if she wanted “deez nuts.” (Id.
¶¶ 174, 178-79.) Swinney once held Bishop's
hand in front of customers and on another occasion leaned
over Bishop in order to press his genitals into her back.
(Id. ¶¶ 158, 162.) Acker was also subject
to physical advances by Swinney. Swinney is alleged to have
touched Ackers breasts as he walked by her on two separate
occasions and to have once touched Acker's buttocks as he
walked by her. (Id. ¶ 36.) In response to a
complaint about his behavior, Swinney stated that “if
[plaintiff] can't take the heat, then get out of the
room.” (Id. ¶ 53.)
and product specialist Sam Gibson (“Gibson”) are
also alleged to have engaged in harassing activity. Rigsby is
alleged to have spoken openly about having sex with two girls
at one time, showed his co-workers texts with nude pictures
he received from a customer that described sex acts,
discussed his love for pregnant female's breasts and his
desire to feed from them, talked about his use of condoms,
and relayed other graphic sexual stories to other employees
at Ashley. (Id. ¶¶ 39-44.) Gibson is
alleged to have openly discussed his love for amateur porn
with co-workers, said he “want[ed] those
customers” who were trying out the mattresses, told
Poague she “blows, ” and talked about “how
disgusting it is to ‘f***k white chicks.”
(Id. ¶¶ 48-51.) Additionally, male
co-workers are alleged to have played a video of a man
talking about “licking girls' booties.”
(Id. ¶ 52.)
is also alleged to have shown favoritism to male employees at
Ashley. For example, Swinney did not follow store policy of
sending walk-in customers to different product specialists.
Instead, Swinney sent all walk-in customers to male product
specialists. (Id. ¶¶ 56-57.) Swinney also
approved sales by male product specialists at much lower
sales margins than female product specialists at Ashley were
allowed to offer. (Id. ¶¶ 59-60.)
Additionally, Swinney checked only female product
specialists' sales margins, assigned female's sales
to male product specialists, and refused to give female
employee their “Sales by Salesperson” details,
which would have allowed Plaintiffs to track their earnings.
(Id. ¶¶ 61-63, 65.) Swinney also required
female employees at Ashley to sign in and out of breaks, and
disciplined female employees more harshly than male employees
who missed work. (Id. ¶¶ 70, 71, 73-74.)
For example, Swinney suspended Coleman for three days after
she was five minutes late to work, but did not suspend a male
employee who failed to show up for an entire day of work.
(Id. ¶ 73.) Swinney is also alleged to have
spoken only to female employees about violations of
Ashley's dress code. (Id. ¶ 75.)
and Holley specifically allege that they were also subject to
discrimination due to their pregnancies. In October 2015,
Poague had a child and requested FMLA leave. (Id.
¶ 80.) Poague was not eligible for FMLA leave, so she
took vacation for the birth of her child. (Id.
¶ 81.) Poague returned to work at Ashley in January
2016. Although Poague's previous manager had promised to
provide her with a private place to express breast milk,
Swinney told Poague she could express milk in the community
room. The community room has a number of cameras because it
contains clearance merchandise that customers at Ashley could
purchase. (Id. ¶¶ 85-86.) As a result of
not having a private place to express milk, Poague had to
travel between home and work to express milk. (Id.
¶ 88.) This travel caused Poague to have to hand over
sales she initiated to co-workers and lose wages because she
was not able to be on the sales floor. (Id.
¶¶ 89-92.) Poague tried to take FMLA leave so that
she could care for her son, who was having problems
developing because Poague could not feed him as often as
needed. Even though Poague had in fact become eligible for
FMLA leave, Swinney and Seavers told Poague that she was
ineligible for FMLA leave. (Id. ¶¶
103-05.) Swinney then told Poague she needed to work more
hours, and that he did not care that her hours were reduced
because she lacked a private place to express milk.
(Id. ¶¶ 97-98.)
February 2016, all product specialists received a one dollar
per hour raise. (Id. ¶ 95.) Holley was excluded
from this raise. Holley was then told she was not given this
raise because she was on maternity leave. (Id.
¶¶ 96, 113.) In July 2016, Poague was granted FMLA
leave to care for her child. When Poague went on FMLA leave
her pending sales and deliveries were assigned to male
colleagues, and Swinney told her she would be placed on a
disciplinary performance plan upon her return from leave.
(Id. ¶¶ 107-09.) In August 2016, Danny
Pastor was hired at a rate one dollar per hour higher than
Holley's pay rate. (Id. ¶¶ 110-11.)
returned from FMLA leave on October 1, 2016, and was
immediately placed on a disciplinary performance plan.
(Id. ¶¶ 124-25.) Additionally, Poague
discovered that her finger print no longer worked on the time
clock, she no longer had an inbox, and that she would not be
given a tablet or leather binder for her sales as other
employees had been given. (Id. ¶ 128.) Poague
was then written up for not meeting the terms of her
disciplinary performance plan. (Id. ¶129.)
Although Poague was written up, her sales were among the top
ten in the nation for Ashley during one of the weeks.
(Id. ¶ 130.)
November 2016, Poague complained about Swinney's behavior
to HR. (Id. ¶ 132.) In December 2016, Poague
filed an EEOC charge about Swinney's behavior.
(Id. ¶ 134.) After Poague filed her charge,
Swinney called her into his office and confronted her.
(Id. ¶ 134.) Swinney then took Poague's
target cards, told other managers that he had to approve any
sales Poague made, interfered with Poague's sales orders
and deliveries, and changed Poague's commission plan.
(Id. ¶¶ 141-43, 146, 149.) Swinney told a
male colleague that he wanted “‘to get rid
of' Poague.” (Id. ¶ 149.) Later in
December 2016, HR interviewed Coleman about Swinney's
behavior. In the interview, Coleman told HR about
Swinney's behavior and his treatment of female employees
at Ashley. (Id. ¶ 150.)
January 2017, Holley and Coleman filed EEOC charges against
Ashley for Swinney's actions. (Id. ¶¶
152, 154.) Swinney then stated he would get rid of Coleman
after he got rid of Poague. (Id. ¶ 155.) In
that same month, Bishop complained to Ashley's Office
Manager Mia Washington (“Washington”) about
Swinney, stating that he made her uncomfortable because he
would touch her and invade her personal space. (Id.
¶ 156.) In February 2017, due to the ongoing nature of
Swinney's conduct, Poague supplemented her EEOC charge
and emailed staff and managers at Ashley about the conditions
there. (Id. ¶ 160.) In March 2017, Bishop again
complained about Swinney to Washington. (Id. ¶
163.) Bishop's hours were then cut from fifty to forty
hours a week. (Id. ¶ 168.) In that same month,
Acker filed an EEOC charge concerning Swinney's behavior.
After Acker filed her charge, Swinney refused to assist her
with sales. (Id. ¶ 172.)
April 2017, Bishop complained to Express about Swinney's
behavior because Ashley had not addressed her complaints and
Swinney continued to make advances towards her. (Id.
¶¶ 173, 176.) The day after she lodged her
complaint with Express, Bishop recorded Swinney making
comments to her about his genitals and asking her if she
wanted “deez nutz.” (Id. ¶¶
178-80.) Bishop played this recording for Express.
(Id. ¶ 184.) Ashley terminated Swinney shortly
thereafter. (Id. ¶ 182)
Swinney was terminated, Acker interviewed for another
position at Ashley in Tuscaloosa. (Id. ¶ 185.)
At this time, Counsel for Plaintiffs had been obtained and
Ashley's Attorney Hannan had received notice that
Plaintiffs were represented. (Id. ¶ 183.)
During her interview, Acker met with Seavers and Hannan, who
claimed to represent HR for Ashley. (Id.
¶¶ 187-88.) In the interview, Hannan asked Acker
about Poague's claims and Swinney's actions,
including whether Swinney had done anything to her.
(Id. ¶¶ 190-95.) After the interview,
Hannan told Acker she could only have the job if she signed
the paperwork he presented to her at the very moment.
(Id. ¶ 196.)This paperwork included waivers of
Acker's claims, a statement against Poague, and a
document retracting her EEOC charge. (Id. ¶
275.) Acker signed the paperwork and was rehired.
(Id. ¶ 200.)
general, a pleading must include “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). However, in order to
withstand a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), a complaint “must plead enough facts to state
a claim to relief that is plausible on its face.”
Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347-48
(11th Cir. 2016) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)) (internal quotation
marks omitted). “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). Stated another way, the
factual allegations in the complaint must be sufficient to
“raise a right to relief above the speculative
level.” Edwards v. Prime, Inc., 602 F.3d 1276,
1291 (11th Cir. 2010). A complaint that “succeeds in
identifying facts that are suggestive enough to render [the
necessary elements of a claim] plausible” will survive
a motion to dismiss. Watts v. Fla. Int'l Univ.,
495 F.3d 1289, 1296 (11th Cir. 2007) (quoting
Twombly, 550 U.S. at 556) (internal quotation marks
evaluating the sufficiency of a complaint, this Court first
“identif[ies] pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. This Court
then “assume[s] the veracity” of the
complaint's “well-pleaded factual
allegations” and “determine[s] whether they
plausibly give rise to an entitlement to relief.”
Id. Review of the complaint is “a
context-specific task that requires [this Court] to draw on
its judicial experience and common sense.” Id.
If the pleading “contain[s] enough information
regarding the material elements of a cause of action to
support recovery under some ‘viable legal theory,
'” it satisfies the notice pleading standard.
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)).
8(a)(2) requires a complaint to include “a short and
plain statement of the claim showing the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Rule 10(b) further
A party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single
set of circumstances. A later pleading may refer by number to
a paragraph in an earlier pleading. If doing so would promote
clarity, each claim founded on a separate transaction or
occurrence-and each defense other than a denial-must be
stated in a separate count or defense.
Fed. R. Civ. P. 10(b).
that violate these rules are often referred to as shotgun
pleadings. The Eleventh Circuit has identified four rough
“categories” of shotgun pleadings that are
prohibited. Weiland v. Palm Beach Cty. Sheriff's
Office, 792 F.3d 1313, 1323 (11th Cir. 2015). The
Eleventh Circuit has described complaints that fall into the
following categories as shotgun pleadings:
[1.] a complaint containing multiple counts where each count
adopts the allegations of all preceding counts, causing each
successive count to carry all that came before and the last
count to be a combination of the entire
complaint….[2.] a complaint that does not commit the
mortal sin of re-alleging all preceding counts but is guilty
of the venial sin of being replete with conclusory, vague,
and immaterial facts not obviously connected to any
particular cause of action….[3. a complaint that]
commits the sin of not separating into a different count each
cause of action or claim for relief. [4.]…[a
complaint] asserting multiple claims against multiple
defendants without specifying which of the defendants are
responsible for which acts or omissions, or which of the
defendants the claim is brought against.
Id. at 1321-23 (footnotes omitted).The common
denominator in all these forms of “shotgun pleadings is
that they fail to one degree or another, and in one way or
another, to give the defendants adequate notice of the claims
against them and the grounds upon which each claim
rests.” Id. at 1323.
allege that Plaintiffs' amended complaint has indicia of
all four categories of shotgun pleading and is therefore due
to be dismissed. Although Plaintiffs' amended complaint
is often disorderly and vague, it does not rise to the level
of an impermissible shotgun pleading. Plaintiffs' amended
complaint does incorporate all prior paragraphs into each
claim. However, these references are also accompanied by a
specific incorporation of facts tailored to the specific
claims. While Plaintiffs' amended complaint may bear some
resemblance to a shotgun pleading, “this is not a
situation where a failure to more precisely parcel out and
identify the facts relevant to each claim materially
increased the burden of understanding the factual allegations
underlying each count.” Weiland, 792 F.3d at
extent Defendants' argue they are impermissibly
“lumped” together in each count, the Court finds
that Plaintiffs' amended complaint is sufficiently plead
to provide notice to Defendants as to what claims are being
asserted against each defendant. Plaintiffs' amended
complaint does, in several instances, refer to
“Defendant” or “Defendants” generally
without specifying which Defendant is being referred to in
each count. However, Plaintiffs identify which Defendants
they are asserting their claims against in the caption of
each count. Although the captions of the counts in the
complaint are not part of the statement of claim under Rule
8, the Court will not require Plaintiffs to re-plead their
complaint simply because Defendants seek to have the same
information provided by the caption repeated within the
numbered paragraphs of the amended complaint.
also argue that Plaintiffs' amended complaint is shotgun
pleading because its factual allegations are too conclusory
and vague. However, Defendants' argument in this regard
is unavailing because it appears that Defendants are asking
this Court to require Plaintiffs to provide more factual
allegations about their allegations. Defendants' argument
would be convincing were this case at the summary judgment
stage. Plaintiffs are required at the motion to dismiss stage
to give defendants sufficient notice of the grounds for
plausible claims against them, no more and no less.
Plaintiffs' amended complaint was a shotgun pleading, it
would be “difficult to understand what the Defendants
‘were alleged to have done and why they were liable for
doing it.'” See Downing v. Midland Funding,
LLC, No. 2:15-cv-00737-RDP, 2016 WL 125861, at *3 (N.D.
Ala. Jan. 12, 2016) (quoting Wright v. Watson, No.
15-cv-34(CDL), 2015 WL 4873381, at *3 (M.D. Ga. Aug. 13,
2015)). Defendants have provided this Court with extensive
briefing regarding the merits of Plaintiffs' factual
allegations and their sufficiency to maintain a claim.
Therefore, to the extent Defendants claim they do not have
sufficient notice, the Court finds that their briefing
suggests otherwise. Ultimately, the amended complaint and the
facts therein “are informative enough to permit a court
to readily determine if they state a claim upon which relief
can be granted, ” and are thus not due to be dismissed
as an impermissible shotgun pleading. Weiland, 792
F.3d at 1326.
IMPLIED MOTION TO STRIKE
asks this Court in his briefing to strike allegations in
Plaintiffs' amended complaint that (1) Washington
“told Bishop [that] Swinney has been accused of
inappropriate sexual conduct with a minor, ” and (2)
that “[a]nother female product specialist, not listed
as a plaintiff, and not named in the complaint, is afraid to
come forward for fear of losing her job.” (Doc. 18
¶¶ 77, 166.); (Doc. 28 at 12, 27.) A motion to
strike is appropriate under Fed.R.Civ.P. 12(f) for “any
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Id.
Motions to strike factual allegations are disfavored and
“will usually be denied unless the allegations have no
possible relation to the controversy and may cause prejudice
to one of the parties.” Augustus v. Bd. of Pub.
Instruction of Escambia Cty, Fla., 306 F.2d 862, 868
(5th Cir. 1962).
Swinney argues these allegations are prejudicial, he has
failed to demonstrate to the Court that these allegations
have no relation to the claims pending before the Court.
Plaintiffs have brought a number of claims against Ashley for
both its own actions and Swinney's actions. These claims
include a sexual harassment and retaliation claims. The
allegations Swinney challenge relate to Plaintiffs'
claims as they demonstrate possible knowledge by Ashley about
inappropriate Swinney's conduct, and a possible work
environment where retaliation occurred. Swinney may be
correct that these facts will not bear out in discovery or
ultimately be produced in an admissible form. Yet, the Court
is not tasked with predetermining such issues based on the
face of Plaintiffs' amended complaint. Therefore,
Swinney's implied motion to strike these allegations is
due to be denied.
VII of the Civil Rights Act of 1964 prohibits employers from
discriminating “against any individual with respect to
. . . terms, conditions, or privileges of employment, because
of such individual's . . . sex.” 42 U.S.C. §
2000e-2(a)(1). Plaintiffs allege that they were subject to
(1) sexual harassment, (2) disparate treatment, and (3)
retaliation in violation of Title VII. Poague and Holley also
assert that they were subject to unlawful discrimination in
violation of the Pregnancy Discrimination Act.
SEXUAL HARASSMENT-HOSTILE WORK ENVIRONMENT
complaint in an employment discrimination case need not
contain specific facts establishing a prima facie
case under the evidentiary framework for such cases to
survive a motion to dismiss.” Henderson v JP Morgan
Chase Bank, N.A., 436 Fed. App'x 935, 937(11th Cir.
2011) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 510-12 (2002)). A plaintiff adequately pleads a claim
for hostile work environment if she alleges (1) she belongs
to a protected group; (2) she was subjected to unwelcome
harassment; (3) the harassment was based on a protected
characteristic; (4) the harassment was sufficiently severe or
pervasive to alter the terms and conditions of her employment
and create an abusive working environment; and (5) a basis
exists for holding the employer liable. Trask v.
Sec'y,Dep't of Veterans Affairs, 822
F.3d 1179, 1195 (11th Cir. 2016). ...