Smith v. W.L. Petrey Wholesale Co., Inc.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.

         This employment discrimination and sexual harassment matter comes before the court on Defendant W.L. Petrey Wholesale Company, Inc.'s “Motion to Dismiss for Failure to State a Claim/Alternatively Motion to Dismiss for Failure to Name Indispensable Parties or for Joinder.” (Doc. 19). Petrey asserts that Plaintiff Willie Smith cannot state a Title VII or § 1981 claim against Petrey because the company was not Mr. Smith's employer as a matter of law. Petrey also argues in the alternative that, because Mr. Smith did not name as defendants the staffing agency that hired him, his alleged harasser at Petrey, and the staffing agency that hired the alleged harasser, the court must dismiss this case or order that those parties be joined in this case. For the following reasons, the court will deny Petrey's motion to dismiss.

         I. STANDARDS OF REVIEW

         Petrey brings its motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “failure to state a claim upon which relief can be granted, ” and Rule 12(b)(7), “failure to join a party under Rule 19, ” so the court presents the standards of review under both Rules.

         Under Rule 12(b)(6), a defendant can move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” The complaint will survive the motion to dismiss if it alleges “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For a complaint to be “plausible on its face, ” it must contain enough “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). And the court accepts as true the factual allegations in the complaint. Id.

         Under Rule 12(b)(7), a defendant can move to dismiss a complaint for the plaintiff's “failure to join a party under Rule 19.” Rule 19 provides that certain persons must be included as parties to an action if feasible. Rule 19(a)(1) defines a “required party” as a person (1) whose absence will preclude the court from affording “complete relief among existing parties”; or (2) who “claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may . . . impair or impede the person's ability to protect the interest[] or . . . leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.”

         So, on a Rule 12(b)(7) motion to dismiss, the court looks at the pleadings and any evidence presented by the parties to determine whether an absent person is a “required party” under Rule 19(a)(1), and, if so, must order that person joined if joinder is feasible. Auto-Owners Ins. Co. v. Morris, 191 F.Supp.3d 1302, 1303 (N.D. Ala. 2016). If joinder is not feasible, then the court may permit the case to proceed without that person or dismiss the case. Fed.R.Civ.P. 19(b).

         II. BACKGROUND

         Consistent with the Rule 12(b)(6) standard of review stated above, the court accepts the following facts alleged in Mr. Smith's amended complaint as true.

         On June 20, 2018, Mr. Smith, “a man of African ancestry, ” began working as an order puller for Petrey through a staffing agency. (Doc. 16 at ¶ 8). A forklift driver working for Petrey told Mr. Smith that the driver would pay Mr. Smith to perform oral sex on him. Mr. Smith refused, but the forklift driver pursued Mr. Smith throughout Petrey's facility, repeatedly grabbed his thigh, and continued to offer to perform oral sex. After Mr. Smith rejected several advances, the forklift driver said he would not pull any of Mr. Smith's orders until he agreed to oral sex.

         Mr. Smith reported the forklift driver to his supervisor at Petrey and said that he wanted to leave for the day. The supervisor spoke to the forklift driver in Spanish and the driver became angry and pointed at Mr. Smith in a threatening manner. Mr. Smith left the facility for the day out of fear that the driver wanted to fight him.

         The following morning, the staffing agency that placed Mr. Smith at Petrey called Mr. Smith and informed him that he was not allowed back on Petrey's property because Petrey accused him of walking off the job.

         From these facts, Mr. Smith brings claims against Petrey for race discrimination and sexually hostile work environment under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, retaliation under Title VII, and the tort of outrage under Alabama law.

         III. ...