CALLIE V.S. GRANADE, District Judge.
After due and proper consideration of the issues raised, and there having been no objections filed, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated August 4, 2014, (Doc. 33) is
The clerk is directed to file the second amended complaint attached to Plaintiff's motion (Doc. 25). Defendant's responsive pleading shall be filed
KATHERINE P. NELSON, United States Magistrate Judge.
Pending before the Court are the "Motion to Dismiss Plaintff's [sic] Amended Complaint Counts Three and Four" (Doc. 18), the "Motion to Dismiss Count Five (in Part) for Lack of Subject Matter Jurisdiction" (Doc. 20), and briefs in support of both motions (Docs. 19, 21) filed by the Defendant, Integrated Airline Services, Inc. ("IAS"). The Plaintiff, Zina B. Nodd ("Nodd"), has timely filed responses (Docs. 23-24) in opposition to the motions to dismiss. Contemporaneous with her responses, Nodd also filed a motion for leave to file a second amended complaint under
The motions to dismiss (Docs. 18, 20) and the motion for leave to amend (Doc. 25) have been taken under submission and are ripe for adjudication. (See Docs. 22, 27). These motions have been referred to the undersigned United States Magistrate Judge for entry of a report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1). Upon consideration, and for the reasons stated herein, the undersigned
Nodd initiated this action on December 5, 2013, by filing pro se a complaint (Doc. 1) alleging claims against IAS under 42 U.S.C. § 1981 ("§ 1981") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981a ("Title VII"), for alleged unlawful discrimination "based on her race, sex, [and] religion," as well as unlawful retaliation. (See Doc. 1). On April 7, 2014, Nodd's current counsel of record entered his appearance in this action. (Doc. 7). On June 6, 2014, IAS filed a motion to dismiss Nodd's complaint under Federal Rules of Civil Procedure 12(b)(1) and (6). (Doc. 12). On June 9, 2014, Nodd filed her Amended Complaint (Doc. 15), currently the operative pleading in this action;
Per the allegations in the Amended Complaint, IAS is a business providing cargo-handling services at Brookley Field in Mobile, Alabama, for various carriers with terminals at that location. (Doc. 15 at 2, ¶ 2). Nodd was first hired by IAS in May 2006, has been employed with IAS as a Mail Handler Supervisor since 2008 at its Brookley Field location, and is the only female supervisor employed at that location. (Id. at 1-2, ¶¶ 1, 4). Nodd stated that her Amended Complaint was being filed "to more clearly set out her claims for relief and the facts upon which her claims are based..." (Id. at 1). Nodd asserted that she "is seeking principally declaratory and injunctive relief, back pay and compensatory and punitive damages, and other relief to redress discrimination in employment on the basis of her sex and retaliation" under both Title VII and § 1981. (Id.).
The Amended Complaint alleges five causes of action against IAS:
(Id. at 7-8).
IAS asserts that Counts Three and Four of the Amended Complaint are due to be dismissed under Rule 12(b)(6) for failure to state a claim on which relief can be granted because § 1981 only applies to claims based on racial discrimination and does not cover claims for sex discrimination. (See Docs. 18-19). IAS asserts that Count Five is due to be dismissed in part under Rule 12(b)(1) for lack of subject matter jurisdiction because Nodd failed to exhaust her EEOC administrative remedies with regard to her claim that IAS discriminated against her on the basis of her sex by "suspending her without pay[] and denying her the same terms, conditions and privileges of employment as male supervisors..." (See Docs. 20-21).
While Nodd has responded (Docs. 23-24) in opposition to the arguments in IAS's motions to dismiss, she has also filed a motion for leave to file a second amended complaint (Doc. 25) "so as to clarify several factual statements made that may contribute to a lack of understanding of Plaintiff's claims in this case."
"After a party has amended its pleading once as a matter of course, the party may amend its pleading only with the opposing party's written consent or with the court's leave." Spaulding v. Poitier, 548 Fed. Appx. 587, 593-94 (11th Cir.2013) (citing Fed.R.Civ.P. 15(a)(2)), cert. denied, ___ U.S. ___, 134 S.Ct. 1880, 188 L.Ed.2d 918 (2014) "District courts may properly deny leave to amend when an amendment would be futile." "The decision whether to grant leave to amend a complaint is within the sole discretion of the district court. Rule 15(a), however, limits the court's discretion by mandating that `leave shall be freely given when justice so requires.'" Laurie v. Ala. Court of Criminal Appeals, 256 F.3d 1266, 1274 (11th Cir.2001) (per curiam) (quoting Halliburton & Assoc. v.
"A proposed amendment may be denied for futility `when the complaint as amended would still be properly dismissed.'" Coventry First, LLC v. McCarty, 605 F.3d 865, 870 (11th Cir.2010) (quoting Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir.2007)). In its opposition to the motion to amend, IAS asserts that leave to amend should be denied as futile for the reasons it has already argued in its motions to dismiss. (See Doc. 26 at 1). Specifically, IAS argues: "[I]t would be futile to allow Ms. Nodd to attempt to replead claims over which this Court lacks subject matter jurisdiction due to failure to exhaust Title VII administrative remedies or which involve conduct which is not unlawful under Section 1981 as set forth in Defendant's pending motions to dismiss Counts Three, Four, and Five." (Id.).
IAS has moved for dismissal of Counts Three and Four of the Amended Complaint, which assert claims for unlawful retaliation under § 1981.
Paragraph 9 of both the Amended Complaint and the proposed amended complaint states: "Plaintiff complains that as a supervisor, she is not treated the same as
(Doc. 25-1 at 3-6 (emphasis added)).
Admittedly, these allegations of complaints of racial discrimination are greatly outnumbered by, and sprinkled among, allegations of disparities between the treatment of Nodd and her male coworkers. However, accepting Nodd's allegations as true, as the Court must at this stage, they establish that Nodd's reduction in work hours and suspension occurred after both her complaints to supervisors of perceived racial discrimination to supervisors and her filing of discrimination charges with the EEOC.
IAS has also moved to dismiss Count Five, in part, for lack of subject matter jurisdiction, asserting that Nodd has failed to administratively exhaust some of the claims contained within that count. Initially, the undersigned notes that a failure to exhaust Title VII administrative remedies does not, as IAS suggests, deprive this Court of subject matter jurisdiction over Title VII claims. It is true that "[t]his circuit has long required plaintiffs to exhaust their administrative remedies before bringing suit under Title VII." Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989). See also, e.g., Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277, 1279 (11th Cir.2004) (per curiam) ("Prior to filing a Title VII action, however, a plaintiff first must file a charge of discrimination with the EEOC. The purpose of this exhaustion requirement is that the EEOC should have the first opportunity to investigate the alleged discriminatory practices to permit it to perform its role in obtaining voluntary compliance and promoting conciliation efforts." (citation and quotation omitted)). However, Eleventh Circuit law is also clear that the conditions precedent to a Title VII action, "generally found in 42 U.S.C. s 2000e-5[,]" "are not jurisdictional prerequisites, which if not satisfied deprive federal district courts of subject matter jurisdiction." Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992, 1009-10 & n. 7 (11th Cir.1982). See also, e.g., id. at 1010 ("[T]he conditions precedent to a Title VII action are not jurisdictional.") & 1011 ("[T]he failure to satisfy the conditions
Jackson went on to state:
678 F.2d at 1010 (some citations omitted).
As noted by Jackson, under Federal Rule of Civil Procedure 9(c), "it suffices to allege generally that all conditions precedent have occurred or been performed." However, Nodd's Amended Complaint (Doc. 15) does not even meet this minimal pleading standard, as nowhere within does she allege that she has satisfied her conditions precedent to bringing her Title VII claims.
"Even though a failure-to-exhaust defense is non-jurisdictional, it is like a defense for lack of jurisdiction in one important sense: Exhaustion of administrative remedies is a `matter[] in abatement, and ordinarily [does] not deal with the merits.'" Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir.2008) (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1360 at 78 n. 15 (3d ed.2004)). "Accordingly, exhaustion should be decided on a Rule 12(b) motion to dismiss..." Id. at 1375. "That motions to dismiss for failure to exhaust are not
Id. at 1376 (citations, quotations, and footnotes omitted).
IAS first asserts that Nodd's Count Five claim for discriminatory suspension without pay, allegedly occurring at some point after July 5, 2013, cannot be covered by either of the two EEOC charges Nodd alleges having filed in both the Amended Complaint and the proposed second amended complaint, as both were alleged to have been filed prior to the suspension (the first is alleged to have been filed on April 22, 2013, the second on May 31, 2013). Compare (Doc. 15 at 5-6 [Amended Complaint, ¶¶ 16, 20-23]) with (Doc. 25-1 at 4-6 [Proposed Second Amended Complaint, ¶¶ 16, 20-23)].
Count Five of both the Amended Complaint and the proposed second amended complaint alleges, inter alia, that by "denying her the same terms, conditions and privileges of employment as male supervisors, [IAS] has engaged in unlawful sex discrimination against" Nodd in violation of Title VII. (Doc. 15 at 7-8; Doc. 25-1 at 8). One of these alleged examples of discrimination was "being required to perform work `off of the clock' without pay." (Doc. 15 at 5, ¶ 18; Doc. 25-1 at 5, ¶ 18). Nodd provides the following factual allegations in her proposed second amended complaint to support her claim that she was discriminatorily forced to work "off the clock":
(Doc. 25-1 at 5, ¶ 19).
IAS argues that Count Five cannot encompass Nodd's allegations of "being required to perform work `off of the clock' without pay" (Doc. 15 at 5, ¶ 18; Doc. 25-1 at 5, ¶ 18) because her EEOC charges are "conspicuously silent regarding any allegations of `being required to work "off of the clock" `... unlike her alleged male counterpart." (Doc. 21 at 4). Thus, IAS argues, this claim has not been administratively exhausted.
In support of this argument, IAS has presented a copy of Nodd's May 31, 2013 EEOC charge (Charge No. 425-2013-00630), which contains the following allegation of particulars:
(Doc. 13-1).
In response to this argument, Nodd has produced what she represents to be a page from her reply (Doc. 24-4) to IAS's "Position Statement" responding to Nodd's May 31, 2013 EEOC charge. The reply is dated July 29, 2013, is stamped received July 31, 2013, and provides, in relevant part:
(Doc. 24-4, ¶ 2.(a); Doc. 24 at 2 (emphasis by Plaintiff)). Nodd also cites Gregory v. Georgia Department of Human Resources, 355 F.3d 1277 (11th Cir.2004), in which the Eleventh Circuit held, in relevant part:
Gregory, 355 F.3d at 1279-80 (internal citations and quotations omitted).
Nodd asserts that "[n]ot only was Plaintiff's claim of having to work off the clock within the scope of the investigation into the difference in treatment she received versus the treatment received by male workers, this complaint was actually made a part of the investigation by Plaintiff's Reply to the Position Statement." (Doc. 24 at 3).
The undersigned is not wholly convinced that Nodd's claims of discrimination regarding "off the clock" work could reasonably be expected to grow out of the initial May 31, 2013 charge of discrimination, as the particular facts alleged in that charge largely support claims for retaliation, with actual gender discrimination being alleged only in a conclusory fashion. However, EEOC regulations provide that "[a] charge may be amended ... to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received." 29 C.F.R. § 1601.12(b). As such, Nodd's reply to IAS's "Position Statement" could be considered an "amendment" clarifying or amplifying her allegations in the initial May 31, 2013 charge.
There is a problem, however, as Nodd has only submitted the first page of her reply, which contains no signature or verification. "The law is clear that to meet
Upon consideration, the undersigned recommends overruling IAS's objection to amendment based on futility regarding Nodd's "off the clock" work claims of discrimination and allowing Nodd to file her proposed second amended complaint. As of now, it cannot satisfactorily be determined from the record whether those claims have in fact been administratively exhausted (and thus would be futilely alleged in the second amended complaint). After the second amended complaint is filed, should IAS determine that Nodd's reply to IAS's "Position Statement" did not properly amend her May 31, 2013 EEOC charge to include her "off the clock" work claims, it may still file another Rule 12(b) motion to dismiss those claims.
Therefore, the undersigned
IAS has also argued that amendment should not be allowed "due to bad faith, dilatory motives, [Nodd's] rejection of a previous opportunity to amend which caused unnecessary expense to IAS, and her repeated failure to cure deficiencies." (Doc. 26 at 1). IAS asserts that Nodd waited an unreasonable period of time before retaining an attorney in this action. Nodd's counsel then represented that he would file an amended complaint but did not do so initially, thus forcing IAS to retain counsel and expend "considerable attorneys' fees" responding to the initial complaint.
IAS has cited no authority indicating why any of this should be considered a "substantial reason" to deny amendment. "The lengthy nature of litigation, without any other evidence of prejudice to the defendants or bad faith on the part of the plaintiffs, does not justify denying the plaintiffs the opportunity to amend their complaint." Bryant v. Dupree, 252 F.3d 1161, 1164 (11th Cir.2001) (citing Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1490 (11th Cir.1989) ("The mere passage of time, without anything more, is an insufficient
The Eleventh Circuit has already rejected the contention that leave to amend should be denied where the plaintiff files an amended complaint as a matter of course in response to an initial motion to dismiss, then moves to amend again after the defendant renews its motion to dismiss. See Bryant, 252 F.3d at 1163-64 ("The district court gave several reasons for its refusal to grant the plaintiffs leave to amend. First, the district court stated that the plaintiffs already had been `given one opportunity to amend their complaint.' This assertion apparently refers to the plaintiffs' Amended Complaint, filed in response to the defendants' original motion to dismiss. Under Rule 15(a), an amendment may be made either as `a matter of course' or `by leave of court.' See Fed. R.Civ.P. 15(a). The Amended Complaint was filed as a matter of course, and until the renewed motion to dismiss came before the court, the plaintiffs had not asked for leave to amend. Therefore, it cannot be said that the plaintiffs already had been given an opportunity to amend or that the plaintiffs repeatedly had failed to cure deficiencies through previously allowed amendments." (footnote omitted)).
While IAS argues that Nodd has failed to correct deficiencies in her allegations despite repeated notice of these deficiencies provided by IAS in both its communications between counsel and its motions to dismiss, the Court has not previously had the opportunity to point out and address any of these claimed deficiencies. Thus, Nodd has not "repeatedly had failed to cure deficiencies through previously allowed amendments."
Thus, it is recommended that IAS's remaining objects to the motion for leave to file a second amended complaint be
As the undersigned has recommended that Nodd be granted leave to file a second amended complaint, the undersigned further recommends that IAS's motions to partially dismiss the Amended Complaint (Docs. 18, 20) be
For the above-stated reasons, the undersigned
Should this recommendation be adopted, it is further
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
Woods v. General Motors Acceptance Corp., in support of the assertion quoted in Wong, cited two out-of-circuit opinions and Grier v. Secretary of Army, 799 F.2d 721, 724 (11th Cir.1986). See 1998 WL 757966, at *3. Grier acknowledged that "the timeliness requirement [for filing an EEOC charge] does not erect a jurisdictional prerequisite to suit," 799 F.2d at 724 (citing Zipes, 455 U.S. at 397, 102 S.Ct. 1127), but held that "this does not suggest that parties complaining of federal employment discrimination in violation of Title VII should ever be waived into court without filing any initial charge with the agency whose practice is challenged." Id. (quotation omitted).
Grier dealt with a federal employee alleging Title VII discrimination against a government agency and her failure to "first seek relief in the agency that has allegedly engaged in discrimination." Eleventh Circuit "case law establishes that
Nodd is not alleged to be a federal employee. Moreover, it is undisputed that Nodd has in fact filed EEOC charges related to this action. It is the scope of those charges that is at issue. Even if the exhaustion jurisdictional requirement for federal employees applied here, "[t]o determine whether an employee failed to exhaust his administrative remedies, [a court] considers whether `the complainant made a good faith effort to comply with the regulations and, particularly, to provide all the relevant, specific information available to him or her.'" Id. (quoting Wade, 796 F.2d at 1376).
While this may simply seem like so much procedural nitpicking, the undersigned has addressed this issue to dispel any misunderstanding that suggests a district court has a duty, as it normally does in matters implicating subject matter jurisdiction, to address sua sponte whether administrative remedies have been properly exhausted in Title VII cases against non-federal employers. As Jackson makes clear, the duty to affirmatively raise such issues rests squarely with the Title VII defendant in such cases. The undersigned notes that the defendant private employers in both Wong and Woods affirmatively raised the issue of failure to exhaust administrative remedies; thus, the Court properly addressed them in those cases.
Nodd's initial, pro se Complaint did allege that her EEOC administrative remedies had been exhausted and even contained an EEOC right-to-sue letter as an attachment. (See Doc. 1 at 3-4). However, the Amended Complaint supersedes the initial Complaint, and all allegations in the initial Complaint are deemed abandoned. See supra, n. 2.
Bryant, however, noted that "where ... exhaustion is not adjudicated as part of the merits, it is
