ANDREW L. BRASHER, District Judge.
This matter comes before the Court on Defendant Sejin America, Inc.'s Motion to Dismiss Plaintiffs' Fourth Amended Complaint (Doc. 42) and Plaintiffs' Motion for Leave to Add Party-Defendant. (Doc. 46). Upon consideration, Defendant's motion to dismiss is
This employment discrimination action has been pending for more than a year, yet it is still at the pleadings stage and discovery has not even begun. That is because Plaintiffs have repeatedly failed to plead a sufficient complaint under Fed. R. Civ. P. 8 and 12. These repeated failures have not been due to a lack of opportunities or instruction given by the Court. Indeed, the Court has generously given Plaintiffs chance after chance to fix their complaint. But now for the fourth time, Plaintiffs have failed to plead a sufficient complaint, except as to one claim.
Plaintiffs Jessica Ross, LaEbboine Russell, Naquita Bledsoe, and Latoya Pearson, who are African-American females, were employed by Defendant Sejin America, Inc. as Administrative Assistants.
On August 15, 2018, Plaintiffs Ross and Russell filed a separate Complaint against Defendant, asserting additional employment discrimination claims and related state law claims. (Doc. 1, Ross v. Sejin America, Inc., Case No. 3:18-cv-734). Defendant also moved to dismiss this complaint for failure to state a claim. (Docs. 9 and 14, Case No. 3:18-cv-734).
On July 15, 2019, the Court consolidated the two cases and ordered Plaintiffs to file an Amended Complaint for the consolidated cases, cautioning Plaintiffs that this would be their "last opportunity to state claims that comply with Rule 8 and Rule 12 of the Federal Rules of Civil Procedure." (Doc. 39). On August 5, 2019, Plaintiffs filed their Fourth Amended Complaint. (Doc. 40).
In Count I, Plaintiffs claim that they were discriminated against by Defendant based on their race and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). Specifically, Plaintiffs allege that Defendant treated them differently than its Asian/Korean employees by (1) awarding Plaintiffs more points for the same violations under its attendance policy, which caused Plaintiffs to be more frequently disciplined, (2) calculating Plaintiffs' actual hours worked in a way that resulted in lesser wages, and (3) awarding Plaintiffs leave eligibility after a longer period of employment. (Doc. 40, ¶¶ 21-29).
In Count II, Ross asserts an additional discrimination claim under Title VII, claiming that she was discriminated against based on her race and national origin because she was required to perform her supervisor's duties without additional pay and her Asian/Korean co-workers were not. (Doc. 40, ¶¶ 30-41). In Count III, Pearson claims that she was subjected to a racially hostile work environment in violation of Title VII because she was required to serve tea to Korean executives on "at least one occasion." (Doc. 40, ¶¶ 42-54). In Count IV, Russell claims she was retaliated against and ultimately terminated by Defendant in violation of Title VII because she filed an EEOC Charge. In Count V, Ross claims that she was subjected to sexual harassment by supervisor Sean Rhee in retaliation for filing an EEOC Charge. And finally, in Count VI, Ross alleges a state law outrage claim against Rhee (and possibly Sejin America, Inc.), claiming that she suffered extreme emotional distress from his sexual harassment.
Defendant again moves to dismiss Plaintiffs' Complaint for failure to state a claim under Rule 12(b)(6). (Doc. 42). Plaintiffs filed their response in opposition to Defendant's motion (Doc. 47) and, for the first time, move to add Sean Rhee as a party-defendant in this case. (Doc. 46).
For purposes of a motion to dismiss, the Court assumes the factual allegations are true and construes them in the light most favorable to Plaintiffs. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). To survive a motion to dismiss based on a challenge to the sufficiency of the pleadings, Plaintiffs need not plead their claims with "detailed factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, Plaintiffs need only plead sufficient factual matter, accepted as true, that would allow the court "to draw the reasonable inference that [D]efendant is liable for the misconduct alleged." Id.
Defendant argues that Counts IV and V of the Complaint should be dismissed with prejudice because they are untimely. Defendant further argues that Counts I, II, III, and VI should be dismissed with prejudice because (1) Plaintiffs' Fourth Amended Complaint is an impermissible shotgun pleading, (2) Plaintiffs failed to plausibly state a claim for relief under Fed. R. Civ. P. 8(a), and/or (3) Plaintiffs failed to exhaust their administrative remedies. Plaintiffs argue that the Fourth Amended Complaint satisfies Rule 8(a) because it provides enough factual specificity to give Defendant adequate notice of their claims and that Plaintiffs exhausted their administrative remedies because the allegations contained in the Complaint are "like or related to" the allegations in their EEOC Charges.
Under 42 U.S.C. § 2000e-5(f)(1), a plaintiff is required to file a civil action under Title VII within 90 days of receipt of her Notice of Right to Sue letter from the EEOC. Gant v. Jefferson Energy Co-op, 348 F. App'x 433, 434 (11th Cir. 2009). Plaintiffs Ross and Russell concede that their retaliation and sexual harassment claims under Title VII (Counts IV and V) were filed more than 90 days after receipt of their Notice of Right to Sue letters and that they cannot present any facts to support equitable tolling of the 90-day deadline to file suit. (Doc. 47 at 5); see Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) ("One who fails to act diligently cannot invoke equitable principles to excuse the lack of diligence."); Gant, 348 F. App'x at 434 ("[T]raditional equitable principles require a claimant to justify [her] untimely filing by a showing of extraordinary circumstances."). For these reasons, Counts IV and V of the Complaint are due to be dismissed with prejudice. See Green v. Union Foundry Co., 281 F.3d 1229, 1233-34 (11th Cir. 2002) (recognizing that plaintiff has the burden of showing that he met the 90-day filing requirement once defendant contests the issue).
Rule 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Each allegation must be "simple, concise, and direct." Fed. R. Civ. P. 8(d)(1). Rule 10(b) further provides that a plaintiff must state her claims in numbered paragraphs, and "i[f] doing so would promote clarity, each claim founded on a separate transaction or occurrence . . . must be stated in a separate count."
When a complaint violates Rule 8(a)(2) or 10(b), it is "often disparagingly referred to as [a] shotgun pleading[]." Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313, 1320 (11th Cir. 2015). "Shotgun pleadings" have been uniformly rejected by the Eleventh Circuit because 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. The most common type of shotgun pleading is "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." Id. at 1321. Another common type of shotgun pleading is one that does not "separat[e] into a different count each cause of action or claim for relief." Id. at 1323. Plaintiffs' Fourth Amended Complaint is a shotgun pleading for both of those reasons and is due to be dismissed with prejudice, except as to Count I.
The Complaint alleges six counts against Defendant. Count I is brought by all four Plaintiffs collectively, and the other counts are asserted by Plaintiffs individually. At least one count (Count V) appears to assert multiple claims within the same count, and another count (Count VI) appears to assert a claim against multiple defendants within the same count, though the Court cannot be certain. Needless to say, clarity in a Complaint of this nature is critical. Yet, despite Plaintiffs' many opportunities to provide that clarity to both Defendant and the Court, Plaintiffs have again failed to do so.
Further, as Defendant points out, Counts II, III, IV, and VI of the Complaint "adopt[] and reallege[] all of the above and foregoing paragraphs as if set forth herein."
But even if Plaintiffs' Fourth Amended Complaint did not constitute an impermissible shotgun pleading, Counts II, III, and VI are still due to be dismissed because Plaintiffs have not pleaded sufficient facts to state a plausible claim for relief.
First, in Count II, Ross claims that she was discriminated against in violation of Title VII because she was "required to provide instructional training" to her Asian/Korean supervisor and was "required to perform her supervisors' job duties, without any additional pay," though "Korean employees of Asian descent [were] not required to perform their supervisor's job duties without additional pay." (Doc. 40, ¶ 33, 36). Ross's general, conclusory allegations referencing "Korean employees of Asian descent" as her comparators do not plausibly allege a claim for intentional race and/or national origin discrimination. See, e.g., Henley v. Turner Broadcasting Sys., Inc., 267 F.Supp.3d 1341, 1353 (N.D. Ga. 2017) (granting motion to dismiss race discrimination claim where plaintiff's "only reference to a comparator [was] her general allegation that `other Caucasian executive assistants[] in the same department' worked fewer hours"). For example, Ross fails to identify any specific comparator and does not allege that these other "Korean employees of Asian descent" had a similar job position, worked in the same department or performed similar work, or even worked for the same supervisor—in fact, her allegations suggest that they worked for other supervisors. Because Ross fails to allege the existence of a valid comparator or allege other facts giving rise to an inference of discrimination, Count II is due to be dismissed.
Next, in Count III, Pearson asserts a racially hostile work environment claim against Defendant. To plead a hostile work environment claim, a plaintiff must allege (1) that she belongs to a protected class, (2) that she has been subjected to unwelcomed harassment, (3) that the harassment was based on a protected characteristic of the employee, (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of her employment, and (5) that the employer is liable for the harassment. Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010); Foster v. Auburn Univ. Montgomery, No. 2:11-cv-6140965, 2011 WL 6140965, at *3 (M.D. Ala. Dec. 8, 2011).
Defendant argues that Plaintiff failed to plead that the alleged harassment was severe or pervasive. The Court agrees. To support her hostile work environment claim, Pearson asserts the following:
(Doc. 40, ¶ 45).
Striking the many conclusory allegations asserted by Pearson, Pearson bases her hostile work environment claim on one incident
Finally, in Count VI of the Complaint, Ross asserts an outrage claim against Sean Rhee. But as discussed below, Rhee is not a proper party to this action, and thus this claim is due to be dismissed. It is unclear from the Complaint whether Ross also intended to assert an outrage claim against Defendant. But to the extent she did, she fails to state a claim upon which relief can be granted. Ross's only allegations against Defendant are conclusory allegations. For instance, Ross claims that Defendant "adopted, confirmed, and/or ratified all of the actions and omissions of it's [sic] agents, servants and employee as it's [sic] own" and that Defendant "has ratified the said acts of Defendant Sean Rhee." (Doc. 40, ¶ 90 and 94). Ross does not allege how Defendant ratified Rhee's alleged actions or even that Defendant was aware of such actions. For these reasons, Count VI of the Complaint is due to be dismissed with prejudice.
Given Plaintiffs' repeated failures to satisfy the pleading requirements under Rule 8, the Court finds that Plaintiffs' claims in the Fourth Amended Complaint, except Count I, are due to be dismissed with prejudice.
Defendant also argues that certain allegations in Count I should be dismissed with prejudice because Plaintiffs failed to exhaust their administrative remedies. Specifically, Defendant argues that Plaintiffs' discrimination claims in Count I related to Defendant's application of leave policies and calculation of employees' timecards are due to be dismissed because the claims were "not included in their EEOC Charges, nor [are they] like or related to the allegations contained in the Charges." (Doc. 42 at 19). Defendant's argument is unavailing.
A plaintiff is required to exhaust her administrative remedies before filing a judicial complaint asserting discrimination or retaliation claims under Title VII. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001). First, a plaintiff must timely file an EEOC charge within 180 days of the last act of discrimination. Id. And second, a plaintiff must file a civil action within 90 days of receipt of her Notice of Right to Sue letter. Gant v. Jefferson Energy Co-op, 348 F. App'x 433, 434 (11th Cir. 2009); 42 U.S.C. § 2000e-5(f)(1). If a plaintiff files a civil action, the plaintiff's judicial complaint is "limited by the scope of the EEOC investigation [that] can reasonably be expected to grow out of the charge of discrimination." Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004). Thus, to determine whether a plaintiff has failed to exhaust her administrative remedies, the proper inquiry is "whether the plaintiff's judicial complaint was like or related to, or grew out of, the administrative allegations." Basel v. Sec'y of Defense, 507 F. App'x 873, 875-76 (11th Cir. 2013).
In determining whether a plaintiff has failed to exhaust her administrative remedies, courts should construe the EEOC Charge broadly because courts are "extremely reluctant to allow procedural technicalities to bar claims brought under [Title VII]." Penaloza v. Target Corp., 549 F. App'x 844, 848 (11th Cir. 2013). Though "allegations of new acts of discrimination are inappropriate," claims that "amplify, clarify, or more clearly focus" the allegations in the EEOC Charges are permitted. Penaloza, 549 F. App'x at 848.
Here, Plaintiffs complain in their EEOC Charges that "Korean and Asian American employees were given benefits that were not offered to the Black and American employees." See Doc. 10-1. An investigation into the benefits not received by Plaintiffs and the reasons why they were not received is plainly expected to "grow out" of this allegation. And the leave-related allegations in Plaintiffs' complaint only "amplify, clarify, or more clearly focus" these allegations in Plaintiffs' EEOC Charges. For instance, Plaintiffs allege in the complaint that Asian/Korean employees were awarded vacation and leave time sooner than Plaintiffs and other non-Asian employees, i.e., a benefit received by Korean/Asian employees that was not received by Plaintiffs. For this reason, the Court finds that Plaintiffs exhausted their administrative remedies with respect to these allegations.
Plaintiffs also allege in their EEOC Charges that "Black and American employees . . . are paid lessor [sic] wages" than Korean and Asian American employees. In their Complaint, Plaintiffs explain in more detail the basis for this allegation: that the number of hours worked on their timecards was rounded in a different manner than the timecards of the Asian/Korean employees, resulting in Plaintiffs receiving lesser wages. Because these allegations reasonably relate to, or "grow out of," Plaintiffs' allegations in their EEOC Charges, the Court finds that Plaintiffs exhausted their administrative remedies.
Finally, Plaintiffs claim in their response that they have sufficiently stated a failure to promote claim against Defendant. But Plaintiffs' complaint is devoid of any factual allegations supporting a failure to promote claim. Though Plaintiffs attempt to circumvent this fatal flaw by arguing that "only through the normal discovery process can Plaintiffs appropriately develop detailed facts to support their failure to promote claim," even at the pleadings stage, a plaintiff must allege sufficient factual allegations "to raise a right to relief above the speculative level." Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
Here, Plaintiffs have not alleged even the most basic factual information— who, what, and when—to support a failure to promote claim. In fact, Plaintiffs only mention promotions twice in the entire complaint: Plaintiffs allege that "the accumulation of employee points is one of the factors used by Defendant Sejin America, Inc. in the awarding of promotions" (Doc. 40, ¶ 15), and Plaintiffs allege that Defendant has a "long-standing policy, practice, custom and usage of limiting the employment and promotional opportunities" of African-American employees. (Doc. 40, ¶ 25). These two passing references are not enough to survive a motion to dismiss. For these reasons, to the extent Plaintiffs assert failure to promote claims against Defendant, those claims are due to be dismissed with prejudice.
Under Rule 15(a), leave to amend the pleadings should be granted freely when justice so requires. "In deciding whether to grant leave to amend[,] [a] district court must take into account several [considerations,] such as `undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and the] futility of the amendment.'" Bamm, Inc. v. GAF Corp., 651 F.2d 389, 391 (5th Cir. 1981) (Unit B) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)); see Brown-Marx Assocs. Ltd. v. Emigrant Savings Bank, 703 F.2d 1361, 1371 (11th Cir.1983). "[A] motion to amend may be denied on numerous grounds such as undue delay, undue prejudice to the defendants, and futility of the amendment." Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir. 2000), abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010).
Here, Plaintiffs' motion to amend the Complaint to add Sean Rhee as a party-defendant should be denied for at least two independent reasons. First, the Court finds that Plaintiffs' amendment—filed more than one year after this action was originally filed—is the result of undue delay and dilatory motive on the part of Plaintiffs. Plaintiffs have had ample opportunity to amend the complaint to add Rhee as a party to this action—four, to be exact—but Plaintiffs have offered no explanation for their delay in waiting until now to do so.
Second, the Court finds that any such amendment would be futile. A proposed amendment is futile "when the complaint would still be properly dismissed." Coventry First, LLC v. McCarty, 605 F.3d 865, 870 (11th Cir. 2010). As discussed above, the Fourth Amended Complaint constitutes an impermissible shotgun pleading and is due to be dismissed with prejudice. Thus, allowing Plaintiffs to amend the complaint a fifth time would be futile. For these reasons, Plaintiffs' motion to amend is due to be denied.
Based on the foregoing reasons, the Court orders as follows:
