United States District Court, N.D. Alabama, Southern Division
KAY E. YOUNG, Plaintiff,
ATLAS WELDING SUPPLY COMPANY, INC., Defendant.
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the court on “Defendant Atlas
Welding Supply Company, Inc.'s Renewed Motion to Dismiss,
” (doc. 18), and “Supplemental Motion to Dismiss
of Atlas Welding Supply Company, Inc., ” (doc. 24).
Atlas Welding filed its renewed motion to dismiss on August
8, 2018. (Doc. 18). On August 14, the court entered a show
cause order why the court should not grant Atlas
Welding's August 8th motion to dismiss. (Doc. 19).
Plaintiff Kay Young responded on August 14, 2018. (Doc. 19).
At that point, the court became aware of a service of process
issue, which it corrected by directing the U.S. Marshal
Service to serve process on Atlas Welding. (Doc. 21). That
order resolved one issue raised in Atlas Welding's
renewed motion to dismiss. The order directed the U.S.
Marshal Service to serve process on an individual identified
by Atlas Welding as able to receive process.
September 25, 2018, Atlas Welding filed its supplemental
motion to dismiss. (Doc. 24). The court entered a briefing
schedule on the supplemental motion to dismiss on November
30, 2018. (Doc. 25). As stated in the order setting the
briefing schedule, the court found the renewed motion to
dismiss moot because the supplemental motion to dismiss
raised the exact same issues as the renewed motion to
dismiss, but did not raise the service of process issue that
Atlas Welding waived in the supplemental motion. So, the
supplemental motion to dismiss is not supplemental in nature,
but is the main motion itself.
Young filed a response to the supplemental motion to dismiss
on January 1, 2019. (Doc. 26). On January 18, 2019, Ms. Young
filed a document titled “Amended Show All, ” with
medical records attached. (Doc. 27). Atlas Welding filed its
reply brief on January 18, 2019. (Doc. 28). The motion is now
ripe for review. (Doc. 24). For the reasons discussed below,
the court will DISMISS this case WITHOUT PREJUDICE.
Young, acting pro se, first filed a complaint in this court
on February 2, 2018. After numerous amendments, the complaint
currently before this court is the Third Amended Complaint.
(Doc. 17). Ms. Young raises four categories of discriminatory
conduct: (1) termination of her employment, (2) failure to
promote, (3) unequal terms and conditions of her employment,
and (4) excessive harassment in meetings. (Id. at
4). Ms. Young contends that she was discriminated against
because of her sex-female-and her age-older than 40 years of
Young worked as a sales representative for Atlas Welding.
(Doc. 17 at 5). She states that she was the only sales
representative not given formal training. She also was not
paid in the same method as the male sales representatives.
When she requested to sell other products, such as certain
gases, Atlas Welding repeatedly told her “it isn't
a good fit.” (Id.).
to Ms. Young, male sales representatives are able to sell all
products to all types of businesses. On the other hand, she
is restricted to certain gases on a limited customer basis.
She contends that only one male sales representative is older
that she; Atlas Welding has most recently hired only young
Young alleges that she was traumatically harassed by two
bosses-one owner and one sales manager. She notes that the
harassment continued from December 2016 until Atlas Welding
terminated her on May 16, 2017. Because of this harassment,
Ms. Young contends that she suffers from post-traumatic
October 17, 2017, Ms. Young filed an EEOC
charge. (Doc. 17 at 5). She received a
right-to-sue letter from the EEOC on November 3, 2017.
(Id.). She did not attach either document to the
Third Amended Complaint. But Ms. Young previously filed the
right-to-sue letter as a notice in this case and as part of
her First Amended Complaint and Second Amended Complaint.
(Doc. 3; Doc. 6 at 11; Doc. 14 at 18). Ms. Young also filed
her EEOC charge as part of her Second Amended Complaint.
(Doc. 14 at 17).
Standard of Review
12(b)(6) motion to dismiss attacks the legal sufficiency of
the complaint. Generally, the Federal Rules of Civil
Procedure require only that the complaint provide
“‘a short and plain statement of the claim'
that will give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47
(1957) (quoting Fed.R.Civ.P. 8(a)). A plaintiff must provide
the grounds of his entitlement, but Rule 8 generally does not
require “detailed factual allegations.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley, 355 U.S. at 47). It does, however,
“demand[ ] more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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 or conclusions” or
“naked assertions” without supporting factual
allegations. Twombly, 550 U.S. at 555, 557.
Supreme Court explained that “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (quoting and explaining its decision in
Twombly, 550 U.S. at 570). To be plausible on its
face, the claim must contain enough facts that “allow
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. 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. “Where a complaint pleads facts that are
merely consistent with a defendant's liability, it
‘stops short of the line between possibility and
plausibility of entitlement to relief.'”
Id. (quoting Twombly, 550 U.S. at 557).
Supreme Court has identified “two working
principles” for the district court to use in applying
the facial plausibility standard. The first principle is
that, in evaluating motions to dismiss, the court must assume
the veracity of well-pleaded factual allegations; however,
the court does not have to accept as true legal conclusions
even when “couched as  factual allegation[s]”
or “threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Iqbal, 556 U.S. at 678. The second principle is that
“only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Id. at
679. Thus, under prong one, the court determines the factual
allegations that are well-pleaded and assumes their veracity,
and then proceeds, under prong two, to determine the
claim's plausibility given the well-pleaded facts. 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.”
Id. If the court determines that well-pleaded facts,
accepted as true, do not state a claim that is plausible, the
claim must be dismissed. Id.
Welding contends that the court should dismiss Ms.
Young's claims for two reasons. First, Ms. Young failed
to file a timely charge with the EEOC for her ADEA claim.
Second, Ms. Young failed to state a claim upon which relief
can be granted for sex and age discrimination. The court will
discuss each argument in turn.
Failure to file a timely EEOC charge
Welding argues that Ms. Young failed to timely file a charge
with the EEOC alleging age discrimination. It maintains that
Ms. Young only checked the box for sex discrimination on her
EEOC charge, not age discrimination, even though she ...