United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER 
H. ENGLAND, IIIUNITED STATES MAGISTRATE JUDGE.
Raymond Kent (“Kent”) brings this action against
his employer, Defendant City of Birmingham
(“City”), alleging unlawful employment
discrimination and retaliation pursuant to Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e,
and 42 U.S.C. § 1981. The City moves to dismiss
Kent's Amended Complaint on the basis that it fails to
state a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P. and for
lack of jurisdiction pursuant to Rule 12(b)(1), Fed.R.Civ.P.
(Doc. 21). Kent has filed a response in which he argues he
sufficiently pled cognizable claims. (Doc. 23). For the
reasons stated below, the City's motion (doc. 21) is
Standard of Review
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain “a short and plain statement of the claim
showing the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not
require 'detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
Mere “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action” are insufficient. Iqbal, 556 U.S. at
678. (citations and internal quotation marks omitted).
“Nor does a complaint suffice if it tenders 'naked
assertion[s]' devoid of 'further factual
enhancement.” Id. (citing Bell Atl.
Corp., 550 U.S. at 557).
12(b)(6), Fed. R. Civ. P., permits dismissal when a complaint
fails to state a claim upon which relief can be granted.
“ To 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 (citations and internal
quotation marks omitted). A complaint states a facially
plausible claim for relief “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. (citation omitted). The complaint
must establish “more than a sheer possibility that a
defendant has acted unlawfully.” Id.; see
also Bell Atl. Corp., 550 U.S. at 555 (“Factual
allegations must be enough to raise a right to relief above
the speculative level.”). Ultimately, this inquiry is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
Allegations Prior to February 2, 2017 and Conduct Beyond EEOC
City argues that Kent's time-barred claims and claims
outside the scope of the EEOC charge should be dismissed.
(Doc. 21 at 8-9).
timeliness, § 706 of Title VII, 42 U.S.C. §
2000e-5(e)(1), provides that only those “unlawful
employment practice[s]” that are complained of in a
timely-filed charge of discrimination to the EEOC can form
the basis for Title VII liability. See, e.g., City of
Hialeah v. Rojas, 311 F.3d 1096, 1102 (11th Cir.2002)
(“If the victim of an employer's unlawful
employment practice does not file a timely complaint, the
unlawful practice ceases to have legal significance, and the
employer is entitled to treat the unlawful practice as if it
were lawful.”). For claims arising in so-called
“non-deferral” states, such as Alabama, to be
timely, the applicable charge must have been filed within 180
days “after the alleged unlawful employment practice
occurred.” § 2000e- 5(e)(1). See Ledbetter v.
Goodyear Tire & Rubber Co., Inc., 421 F.3d 1169
(11th Cir. 2005). Therefore, as a general rule, only those
“practice[s]” that “occurred” within
180 days of the operative EEOC charge can form the basis for
Title VII liability.
case, Kent filed his EEOC charge on August 7, 2017, and the
City argues that any allegations that occurred before
February 2, 2017 - 180 days before - should not be
considered. (Doc. 21 at 8-9). Kent points to National
Railroad Passenger Corp. v. Morgan, in which the Supreme
Court considered whether, and under what circumstances, a
Title VII plaintiff may file suit on events that fall outside
the 180-day filing period. 536 U.S. 101, 105 (2002). The
Morgan Court reached two answers: one for disparate
treatment and retaliation claims challenging “discrete
discriminatory or retaliatory acts” and another for
claims alleging a hostile work environment. Id.
Thus, while the timely-filing requirement erects an
“absolute bar” on recovery for “discrete
discriminatory or retaliatory acts, ” when there is an
alleged hostile work environment “consideration of the
entire scope of [the] claim, including behavior alleged
outside the statutory time period, it is permissible for the
purposes of assessing liability, so long as an act
contributing to that hostile environment takes place within
the statutory time period.” Id. at 113-14.
Because Kent alleges he was subject to a hostile work
environment, (see doc. 20 at ¶¶ 18, 30,
35, 37, 41, 50, 62, 67, 69, 72, 82, 94, 99, 101, 104), any
alleged discriminatory acts that occurred prior to February
2, 2017, may be considered as part of his hostile work
City is correct that a Title VII plaintiff's judicial
complaint is limited by the scope of the EEOC investigation
that can reasonably be expected to grow of the EEOC charge.
(Doc. 21 at 9); Alexander v. Fulton County, Ga., 207
F.3d 1303, 1332 (11th Cir.2000). However, courts are
“extremely reluctant to allow procedural technicalities
to bar claims brought under [Title VII]. Sanchez v.
Standard Brands, Inc., 431 F.2d 455, 460-61 (5th Cir.
1970). As such, the scope of an EEOC charge should not be
City fails to point to anything in Kent's complaint that
it contends is outside the scope of Kent's EEOC charge.
(See doc. 21 at 9). Instead, the City states
“Plaintiff attempts to allege claims of discrimination
outside the scope of the August 7, 2017 EEOC Charge of
Discrimination, ” and then provides a one-sentence
summary of the general rule with a case citation, and finally
concludes “[t]herefore, any allegations of
discrimination not included in the August 7, 2017 charge of
discrimination cannot be considered in the present
matter.” (Id.). Because the court must
evaluate whether the material alleged to be “outside
the scope” of the EEOC charge is “like or related
to, or grew out of, the allegations ...