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Poague v. Huntsville Wholesale Furniture

United States District Court, N.D. Alabama, Western Division

February 20, 2019

MICHELLE POAGUE, et al., Plaintiffs,



         Plaintiffs 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 (“Hannan”) (collectively “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.[1] 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.

         I. BACKGROUND [2]

         Ashley 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.

         Plaintiffs 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.)

         Rigsby 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.)

         Swinney 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.)

         Poague 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.)

         In 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.)

         Poague 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.)

         In 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.)

         In 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.)

         In 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)

         After 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.)

         II. STANDARD

         In 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 omitted).

         In 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)).



         Rule 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 provides:

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).

         Complaints 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.

         Defendants 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 1324.

         To the 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.[3]

         Defendants 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.

         If 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.


         Swinney 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).[4]

         While 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.

         c. TITLE VII

         Title 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.


         “A 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). ...

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