United States District Court, N.D. Alabama, Southern Division
BARON K. HATCHER, Plaintiff,
BIRMINGHAM JEFFERSON COUNTY TRANSIT AUTHORITY, Defendant.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Defendant's Motion to Dismiss
or Alternatively for Judgment on the Pleadings (Doc. #
and Motion to Strike (Doc. # 9). The Motions have been fully
briefed (Docs. # 8, 11, 13-15, 19-20) and are ripe for decision.
After careful review, and for the reasons explained below,
the court concludes that the Defendant's Motion to Strike
is due to be denied, and its Motion to Dismiss is due to be
Baron K. Hatcher, alleges that he is a homosexual (Doc. # 4
at ¶ 5) and claims that Defendant discriminated against
him based on his sexual orientation in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq. (See
generally Doc. # 4). He also claims that he complained
about mistreatment aimed at him because of his sexual
orientation and that he was retaliated against for doing so.
(Id. at ¶ 7). As a result, Plaintiff asserts a
retaliation claim under 42 U.S.C. §
2000e-3(a). (Id. at ¶ 18). In support of
these claims, Plaintiff alleges the following facts in his
a homosexual male, has worked as a Bus Operator with
Defendant Birmingham-Jefferson County Transit Authority since
July of 1991. (Doc. # 4 at ¶ 5). Plaintiff asserts that
although he is the sixth most senior employee, Defendant
“regularly and consistently discriminated against [him]
because of his homosexuality.” (Id. at ¶
Plaintiff alleges that two of his female coworkers, Cortessa
Bell and Tenesha Williams, discriminated against him by
neglecting to assign him unscheduled overtime work on the
same basis as other non-homosexual drivers. (Id. at
2-3). Plaintiff claims that Defendant prepares the bus
drivers' schedules one day in advance of the scheduled
work day and requires all drivers to be ready to begin any
shift ten minutes prior to the start time of the shift.
(Id. at ¶¶ 10, 16). According to
Plaintiff, Bell frequently changed the schedule to give other
less senior, non-homosexual drivers opportunities to earn
unscheduled overtime hours and disproportionately enforced
Defendant's ten-minute policy against him.
(Id.). Plaintiff contends that these allegedly
discriminatory actions were motivated by his sexual
orientation. (Id. at ¶ 10).
support of this contention, Plaintiff alleges that in July
2017, Bell chose several employees to travel to North
Carolina to drive a number of school buses back to
Birmingham, Alabama. (Id. at ¶ 11). Bell did
not invite Plaintiff to participate in the trip.
(Id.). Plaintiff claims that during this trip, Bell
asked another employee how long Plaintiff had been a
homosexual. (Id.). Plaintiff also claims that Bell
told the employee “that she had tried to get along with
Plaintiff, but he would not accept her attempts to be nice to
Plaintiff alleges that he repeatedly submitted written
complaints to his supervisors, Peter Walcott and Allen E.
Perdue, Jr. (Id. at ¶ 7). Specifically, he
complained that Bell assigned him overtime work hours less
frequently than other less senior, non-homosexual drivers
because of his sexual orientation. (Id.). However,
Plaintiff avers that Defendant's allegedly discriminatory
actions continued despite his complaints. (Id. at
Standard of Review
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. International Univ., 495 F.3d 1289, 1295 (11th
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.
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) (unpublished) (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
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.
reasons explained below, the court concludes that
Defendant's Motion to Strike is due to be denied, but