VIRGINIA EMERSON HOPKINS, District Judge.
This sexual harassment lawsuit premised upon a hostile work environment was initiated by the Equal Employment Opportunity Commission (the "EEOC") against Defendant Coley's #101, Limited Liability Company d/b/a Dad's BBQ ("Dad's BBQ") on September 26, 2011. (Doc. 1). The action seeks "to correct unlawful employment practices on the basis of sex, female and to provide appropriate relief to Aretha Johnson and a class of employees of Defendant who were adversely affected by such practices." (Doc. 1 at 1). More specifically, the EEOC contends that this group of women were subjected to sexual harassment as employees of Dad's BBQ. (Id.).
Pending before the court is the Third Motion To Intervene (Doc. 24) (the "Motion") filed by LaTeshia K. Carr ("Ms. Carr") and Aretha Johnson ("Ms. Johnson") on April 19, 2012. The Motion, for a third time, asks the court to allow Ms. Carr and Ms. Johnson (collectively, the "Intervenors") to intervene as named plaintiffs. The court entered a briefing order (Doc. 25) on the Motion on April 26, 2012. Pursuant to this schedule, the Intervenors filed this supporting brief (Doc. 28) on May 14, 2012, and Dad's BBQ filed its opposition brief (Doc. 31) on May 29, 2012.
On June 4, 2012, the Intervenors followed with their reply. (Doc. 32). Accordingly, the Motion is now under submission and for the reasons explained below is
The Intervenors premise this Motion upon intervention as a matter of right with respect to their claims of Title VII sexual harassment and permissive intervention for their remaining claims. Rule 24 of the Federal Rules of Civil Procedure governs intervention and provides in part:
Fed. R. Civ. P. 24(a)-(b).
"Whether leave to intervene is sought under section (a) or section (b) of Rule 24, the application must be timely." Stallworth v. Monsanto Co., 558 F.2d 257, 263 (11th Cir. 1977) (citing United Air Lines, Inc. v. McDonald, 432 U.S. 385, 387, 97 S.Ct. 2464, 2466, 53 L. Ed. 2d 423, 427 (1977)).
Intervention as a matter of right is reviewed for error. Walters v. City of Atlanta, 803 F.2d 1135, 1151 n.16 (11th Cir. 1986) ("We review unsuccessful motions to intervene as of right under Rule 24(a) for error."). The standard of review for permissive intervention is abuse of discretion." Id. ("Motions for permissive intervention under Rule 24(b) are reviewed to determine whether the trial court abused its discretion."); see also Athens Lumber Co., Inc. v. Fed. Election Comm'n, 690 F.2d 1364, 1367 (11th Cir. 1982) ("[P]ermissive intervention . . . lies within the discretion of the district court. . . . [and] is a decision which may be reviewed only for a clear abuse of discretion.") (citations omitted).
Dad's BBQ primarily opposes the Motion on the grounds of futility. Typically, the doctrine of futility arises in the context of a plaintiff's seeking leave to amend a complaint.
"When a district court denies the plaintiff leave to amend a complaint due to futility, the court is making the legal conclusion that the complaint, as amended, would necessary fail." St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F.3d 815, 822-23 (11th Cir. 1999). The futility standard is comparable to that applicable to a motion to dismiss. See B.D. Stephenson Trucking, L.L.C. v. Riverbrooke Capital, No. 5:06-CV-0343-WS, 2006 WL 2772673, at *6 (S.D. Ala. 2006) ("The futility threshold is akin to that for a motion to dismiss; thus, if the amended complaint could not survive Rule 12(b)(6) scrutiny, then the amendment is futile and leave to amend is properly denied." (citing Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir.1999))); see also Florida Power & Light Co. v. Allis Chalmers Corp., 85 F.3d 1514, 1520 (11th Cir.1996) (affirming district court's denial of amendment as futile because purported cause of action "would not withstand a motion to dismiss").
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed. R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require only that the complaint provide "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007); see also Fed. R. Civ. P. 8(a).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8 does not mandate the inclusion of "detailed factual allegations" within a complaint. Twombly, 550 U.S. at 545 (quoting Conley, 355 U.S. at 47). However at the same time, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563.
"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 129 S. Ct. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 129 S. Ct. at 1950. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine
A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556).
The proposed complaint-in-intervention contains six separate counts, three of which are federal claims and three of which are state-law based. (See generally Doc. 24-1). More specifically, the Intervenors seek to assert the following list of claims in this lawsuit: 1) Title VII sexual harassment; 2) Title VII sex discrimination asserted by Ms. Johnson only; 3) Title VII retaliation; 4) slander; 5) outrage; and 6) negligent supervision. (Id. ¶¶ 31-82).
The Intervenors' right-to-sue letters are now part of the record. (Docs. Nos. 28-4, 29). The EEOC issued Ms. Carr's on May 10, 2012 (Doc. 28-4 at 1), and Ms. Ms. Johnson's on May 15, 2012. (Doc. 29 at 1).
Dad's BBQ does not contest intervention with respect to count I of the proposed amended complaint, which asserts sexual harassment.
The law is clearly established within this Circuit that the requirement of administrative exhaustion does not bar a plaintiff from pursuing a post-charge retaliation claim due to the application of the so-called Gupta rule. See Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 762 (11th Cir. 1995) ("In Gupta, the court held that there is no need to file a subsequent EEOC charge involving a retaliation claim where the claim `grows out of an administrative charge that is properly before the court,' because the court has ancillary jurisdiction over the claims."). Stated differently, under Gupta, a litigant is simply not required to administratively exhaust a retaliation claim that arises out of a previously and properly filed administrative charge of discrimination. Cf. Houston v. Army Fleet Servs., L.L.C., 509 F.Supp.2d 1033, 1043 (M.D. Ala. 2007) ("If, however, the alleged retaliatory action occurs before the initial EEOC charge is filed, a plaintiff must exhaust his administrative remedies as to that claim by including factual information in the charge that discloses the factual basis for the retaliation claim.").
As the Eleventh Circuit has clarified the contours of the Gupta rule:
Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988) (emphasis added). Thus, controlling precedent from the Eleventh Circuit unambiguously establishes that "a claim of [Title VII] retaliation could reasonably be expected to grow out of the original charge of [Title VII gender] discrimination." Consequently, there simply is no basis to Dad's BBQ's administrative exhaustion defense as it pertains to post-charge claims of retaliation, and the court will allow Ms. Johnson to pursue her retaliatory failure to promote and retaliatory compensation claims as set out in count II.
With respect to count III, Dad's BBQ again maintains that administrative exhaustion bars Ms. Carr's retaliatory discharge claim. However, as clarified by Ms. Carr and confirmed by the record, her EEOC charge expressly alleges that "she was terminated in an act of retaliation." (Doc. 31-1 at 6). Therefore, Dad's BBQ's futility defense is likewise futile as to count III.
Finally, Dad's BBQ suggests that count III includes a disparate pay claim on behalf of Ms. Johnson. (Doc. 31 at 17).
Dad's BBQ contests the viability of all state law claims asserted by the Intervenors. The court address each one separately below.
Dad's BBQ urges that this court should disallow the Intervenors' slander count for their failure to state a claim and because their claims are barred by the statute of limitations. (Doc. 31 at 22-24). The court concludes, to the contrary, that the slander claims are plausibly pled, that Dad's BBQ incorrectly asserts that the applicable statute of limitations for slander is one year,
Dad's BBQ also contends that the Intervenors' outrage claim requires more specificity. (Doc. 31 at 20-22). The court disagrees and determines that because the count incorporates the pleading's prior factual allegations, including the sexually harassing acts allegedly endured by Ms. Johnson and Ms. Carr, count V has been plausibly pled and survives scrutiny under Rule 12(b)(6).
Dad's BBQ further maintains that the Intervenors' negligent supervision claim is improperly pled. (Doc. 31 at 25-26). Akin to the court's analysis regarding outrage set out above, the court rejects Dad's BBQ's position and finds that the Intervenors' negligent supervision claim is not futilely asserted.
Dad's BBQ raises two other categories of objections to intervention that are unrelated to futility. First, regarding their federal claims, Dad's BBQ argues that the Intervenors "do not satisfy Rule 24(b)(2)'s requirements for permissive intervention under Title VII because they seek to add new causes of action that do not have questions of law or fact in common with sexual harassment, require examination of legal principles and factual issues that are unrelated to sexual harassment cases, impermissibly enlarge the scope of the lawsuit, and increase the costs of litigation." (Doc. 31 at 26).
While the court acknowledges that the initial reason raised in this section of Dad's BBQ's brief loosely tracks the language of Rule 24(b)(1)(B), Dad's BBQ cites to no case authority which has embraced any of these other purported grounds as a basis for denying permissive intervention to charging parties seeking to assert Title VII retaliation that allegedly arises out of underlying Title VII sexual harassment that is being litigated by the EEOC on behalf of those same individuals.
Additionally (and assuming the soundness of the above framework), Dad's BBQ merely makes bare allegations about the presence of these factors without providing any substantiating details. Under such circumstances, the court is under no obligation to address such an underdeveloped and perfunctorily presented position. Cf. Flanigan's Enters., Inc. v. Fulton County, Ga., 242 F.3d 976, 987 n.16 (11th Cir. 2001) (holding that a party waives an argument if the party "fail[s] to elaborate or provide any citation of authority in support" of the argument); Ordower v. Feldman, 826 F.2d 1569, 1576 (7th Cir. 1987) (stating that an argument made without citation to authority is insufficient to raise an issue before the court).
Moreover, the court disagrees with Dad's BBQ's characterization of the proposed intervention as lacking shared commonality and instead sees the Intervenors' retaliation claims factually springing from their reporting and complaining about sexual harassment. Finally, even if an alleged but unquantified concern about an increase in the costs of litigation is an appropriate
Second, regarding the state law claims, Dad's BBQ contends that allowing intervention "will prejudice [the] adjudication of [its] rights." (Doc. 31 at 26). Initially, the undersigned observes that nothing in Rule 24 directs a district court to decline to entertain permissive intervention on account of
Instead, as is pertinent here, the relevant inquiries for the court to address are whether there are "common question[s] of law or fact" and "whether the intervention will
Regarding commonality, this court finds that there is a significant overlap between several of the state law claims and Title VII sexual harassment, especially as "[i]t is well settled that Alabama does not recognize an independent cause of action for sexual harassment. Instead, claims of sexual harassment are maintained under common-law tort theories such as assault and battery, invasion of privacy,
Additionally, the Intervenors' state law slander claims factually flow from their complaints and/or charges made about sexual harassment in the workplace. Cf. Stallworth, 558 F.2d at 269 ("In light of the liberal construction that the `interest' requirement of section (b)(2) has received, the appellants plainly meet the first test.") (citations omitted).
The court also finds that Dad's BBQ will not be unduly prejudiced by the proposed intervention.
Further, the court finds these opinions to be either significantly off-point or otherwise unpersuasive.
Based upon the foregoing, the Motion is
More specifically, in repleading, the Intervenors must break each one of their claims against Dad's BBQ into a separate federal or state law
(Doc. 23 at 7-8).
Davis, 516 F.3d at 979 n.54.