MEMORANDUM OPINION

INGE PRYTZ JOHNSON, District Judge.

Pending before the court is the defendant's motion to dismiss or alternatively, motion for summary judgment (doc. 10), a memorandum in support of said motion (doc. 9), the plaintiff's opposition (doc. 15), and the defendant's reply (doc. 16). Having considered the motion, response, reply, and the other pleadings filed to date, the court finds as follows:

Factual Background

In her complaint, brought on behalf of herself and others similarly situated, the plaintiff alleges that she is a female who was an employee of the defendant at its Decatur, Alabama, facility from 1995 until 2009, when she resigned and received a severance package. Complaint, ¶¶ 1, 5, 10. In September 2010, the plaintiff returned to work for the defendant as a contract employee, doing the same work she had done previously and the same work others employed by defendant as Process and/or Operations Technicians performed. Complaint, ¶¶ 11-12. In November 2010 the plaintiff applied for a permanent position as a process and/or operations technician.1 Complaint, ¶ 14. She asserts that she met the requirements for this job, that candidates who did not meet the requirements did not continue in the selection process for this job, and that the requirements "discouraged a class of female applicants from applying for Operations and/or Technician positions . . ." Complaint, ¶¶ 16-18 (emphasis added).

The plaintiff continued in the selection process to the "WorkKeys" test, and passed one section, but did not pass the other. Complaint, ¶¶ 19, 24. Because she was unable to pass one section of the required testing, she was not rehired as a permanent employee. Complaint, ¶ 26.

During the pendency of the plaintiff's EEOC charge, filed April 27, 2011, the defendant dispensed with the "WorkKeys" test and instituted testing more closely aligned with the actual knowledge needed for the job in question.2 Complaint, ¶¶ 28-30. The plaintiff took the new test, passed it, and as of the time of filing her complaint, was awaiting an interview for a permanent position. Complaint, ¶ 31. Based on these allegations, the plaintiff seeks to bring a class action on behalf of "female applicants and discouraged female applicants who have been subjected to one or more aspects of . . . systematic gender discrimination" by defendant. Complaint, ¶ 36. The plaintiff seeks declaratory and injunctive relief, as well as back pay, front pay, and punitive and other damages, pursuant to Title VII and 42 U.S.C. § 1981a.

The defendants assert that the plaintiff's claim pursuant to 42 U.S.C. § 1981a is due to be dismissed because that code section fails to provide an independent cause of action. The defendant also asserts that the plaintiff lacks standing to challenge any employment practice of the defendant other than the WorkKeys test, that the plaintiff lacks standing to challenge practices at any of defendant's facilities other than the one in Decatur, Alabama, that she lacks standing to seek injunctive relief, and that she lacks standing to represent a class of "discouraged" female applicants.3

Standard of Review

In reviewing a motion to dismiss, the court must "accept the allegations of the complaint as true and construe them `in the light most favorable to the plaintiff.'" Simmons v. Sonyika, 394 F.3d 1335, 1338 (11th Cir.2004); citing Hill v. White, 321 F.3d 1334, 1335 (11th Cir.2003). A motion to dismiss is granted "only when the movant demonstrates `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Sonyika, 394 F.3d at 1338, citing Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir.2004)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). See also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200 (2007) ("when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint"); Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir.1994)(same).

Legal Analysis

A. Standing

The majority of the defendant's motion challenges the plaintiff's standing to brings the above detailed claims.

The plaintiff seeks to represent a class of women not hired by the defendant because of discriminatory hiring policies and procedures.4 See e.g., plaintiff's response, at 3. She asserts she has suffered the injury alleged, namely that she was denied employment by defendant as a result of its discriminatory hiring practices.5 Id. Her EEOC charge alleges that "females fail to pass that test in a disproportionate rate as compared to males," that the test excludes females from employment at BP, and that BP is aware of this impact and uses the test intentionally for this purpose. The plaintiff adds that one woman that did pass the test was not hired because she interviewed poorly, but this woman also worked for defendant for 14 years.

The defendant challenges plaintiff's ability to represent such a class based on standing, asserting the plaintiff's only injury stems from the failure to pass one section of the WorkKeys test. Defendant's brief, at 13. The plaintiff responds that this is a much too narrow view of the standing requirement, and that her injury in fact is the adverse employment action which resulted from the failure to pass the test. Plaintiff's response, at 4.

The Eleventh Circuit has held that for standing, the plaintiff necessarily is limited to "the issues as to which [the employee] is aggrieved." Griffin v. Dugger, 823 F.2d 1476, 1493 n. 37 (11th Cir.1987)(quoting Oatis v. Crown Sellerbach Corp., 398 F.2d 496, 499 (5th Cir.1968)(citing to Title VII's enforcement provision that requires the EEOC to investigate the charges of a person claiming to be aggrieved, 42 U.S.C. § 2000e-5(a))). Each claim asserted by a named plaintiff "`must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.'" Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1280 (11th Cir.2000) (quoting Griffin, 823 F.2d at 1483).

"The mere fact that an aggrieved private plaintiff is a member of an identifiable class of persons of the same race or national origin is insufficient to establish his standing to litigate on their behalf all possible claims of discrimination against a common employer." General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 159 n.15, 102 S.Ct. 2372, n.15 (1982). Falcon thus holds that the existence of a valid individual claim does not necessarily warrant the conclusion that the individual plaintiff may successfully maintain a class action. Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 877-878, 104 S.Ct. 2794, 2800 (1984). In pursuing claims on behalf of a class, a Title VII plaintiff is held to the prerequisites of numerosity, commonality, typicality and adequacy of representation specified in Rule 23(a). Falcon, 467 U.S. at 156, 102 S.Ct. at 2369.

Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987) (footnotes and citations omitted) (emphasis added).

Hence, the parties before this court dispute which, in any, of defendant's actions has rendered plaintiff "aggrieved." The Griffin Court explained

Id., 823 F.2d at 1482-1483.

Plaintiff's individual injury arises solely from alleged discriminatory testing practices, while the proposed class includes all women employees and applicants. The claim asserted on behalf of the class is that the Company engages in a general pattern and practice of discrimination against all women employees and applicants in all aspects of employment. It has not been made clear that there are common questions of law or fact; that plaintiff's claim is typical of the claims of the class; or that plaintiff will fairly and adequately protect the interests of the class.

Coon v. Georgia Pacific Corp., 829 F.2d 1563, 1566 (11th Cir.1987).

The court has similar concerns here. The plaintiff does allege a proposed class which is presumably numerous. She asserts through loose allegations that various procedures in defendant's hiring practice are discriminatory and have the effect of resulting in both more male hires, and discouraging women from applying. Specifically, she states that her "challenge is to the system as a whole for effectively barring women's entry into these positions at BP Amoco." Plaintiff's response, at 4. However, if the testing procedures are the basis for the disparity in women hired, as the plaintiff alleges, then only women who were not hired because of the testing procedures could possibly allege an injury from those procedures.6

Further problematic to plaintiff, taking the factual allegations of her complaint as true, she was not discouraged from applying for a job with defendant, nor barred from positions with defendant. She both applied for jobs with defendant, and was hired by defendant, more than once. Therefore "[s]he has not demonstrated that . . . her individual EEOC charge is so intertwined with the claims of class members that their interests may be adequately protected and fairly determined in their absence." Falcon, 457 U.S. at 157 n.13, 102 S.Ct. at 2370 n.13; Nelson v. United States Steel Corp., 709 F.2d 675, 679 (11th Cir.1983). The plaintiff therefore lacks standing to assert claims on behalf of females discouraged from applying with defendant, regardless of the reasons for non-application. See e.g. Rhodes v. Cracker Barrel Old Country Store, Inc., 2002 WL 32058462, 47 (N.D.Ga.2002)("For example, no putative class representative was deterred from applying for employment at Cracker Barrel. Therefore, no putative class representative can represent anyone who allegedly was so deterred.").

As to the remainder of the plaintiff's proposed class, those females who applied for positions with the defendant but were not hired because they could not pass required testing, the court finds the plaintiff's standing is again limited to those females who did not pass the Work Keys test post-2009. Although the defendant may in fact have other employment hurdles which have a disparate impact on females in general, the plaintiff has not been subjected to those impacts, and therefore lacks standing to pursue claims based on the same.7

The plaintiff disputes such an analysis, asserting that the various stages of the application process must be viewed as a whole because they are not capable of separation for analysis. Plaintiff's opposition, at 7-8. The court disagrees. The plaintiff specifically alleges in her complaint that it is the unnecessary testing, and specifically the Applied Technology portion of the WorkKeys test, which "has the effect of lowering the pass rate of female candidates in comparison with males;" that "because she failed to pass the WorkKeys test, Defendant refused to re-hire her as an employee with benefits;" that the defendant no longer uses this test; that the defendant instituted a new test, which does not include certain areas of the "Applied Technology" section of the WorkKeys test, including the components on electrical knowledge; that "the content of the new test corresponds more closely with the actual duties for a Chemical Technician; and that the plaintiff "passed the new test on her first try . . . [and] has been awarded an interview. . . ."8 Complaint, ¶¶ 25-31.

The plaintiff asserts in her response that this interpretation is entirely too narrow, citing to Phillips v. Joint Legislative Comm., et al., 637 F.2d 1014 (5th Cir.1981). In that case, the court held a sufficient nexus for standing existed between the plaintiff, who was an applicant for a position, and individuals who never applied. Id., at 1024. The court held that if plaintiff sought to represent solely a class of deterred persons, the plaintiff would lack standing, "in the same sense that a high school graduate lacks standing to bring a class action challenging a high school requirement." Id. (citations omitted). Such an "across the board" approach, as was adopted in Phillips, was widely used by courts until "[t]he Supreme Court repudiated that liberal reading of the class action, and the reasoning underlying it, in General Tel.Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)." Griffin v. Dugger, 823 F.2d at 1485.

As such, the plaintiff's claims are necessarily limited as set forth above, and she has standing only to represent a class of women similarly injured during the relevant time period, that being from November 2010 until the date the WorkKeys test was eliminated as a requirement for hiring.

B. Facilities Involved

The defendant asserts that the WorkKeys test is only used at its Decatur facility. The plaintiff responds that the "employment practices at issue in this complaint are not unique or limited to one plant . . ." Plaintiff's opposition, at 15. The plaintiff's complaint alleges that the "defendant's hiring procedures are determined at the corporate level of the defendant's operations, and do not vary significantly form one facility or geographical location to another. As the court has determined not to convert the pending motion into one for summary judgment, and finds nothing before it at this time concerning the use of this testing at locations other than the Decatur, Alabama, the court finds this portion of the defendant's motion to dismiss to be premature. The court shall therefore deny the motion on these grounds, without prejudice to the defendant's right to again raise this contention after discovery.

C. Injunctive Relief

The defendant asserts that as the plaintiff has been recommended for hire by defendant, she has no threat of future injury and therefore cannot prevail on her claim for injunctive relief. Defendant's brief, at 14-15. The plaintiff responds that the plaintiff seeks an injunction to "discontinue Defendant's ongoing discrimination against female applications and to place or restore them to the positions they would be occupying but for Defendant's discriminatory practices . . ." Plaintiff's opposition, at 17. As the court finds the plaintiff alleges that the WorkKeys test has been discontinued, and the court has limited the plaintiff's claims to women who failed this portion of the application process during the relevant time period, there is no basis for injunctive relief left. Additionally, the plaintiff seeks to have female applicants be "place[d] or restore[d] . . . to the positions they would be occupying but for Defendant's discriminatory practices." Plaintiff's response, at 17, citing Complaint. These are claims for compensatory damages complete with back pay and lost benefits. They are not claims for injunctive relief. Hence, this portion of the defendant's motion to dismiss shall be granted by separate order.

D. Section 1981a

The defendant seeks to have the plaintiff's claims under 42 U.S.C. § 1981a dismissed on the basis that section does not provide relief for disparate impact claims. Defendant's brief, at 8. The plaintiff responds that she brings claims both for disparate impact and disparate treatment. Plaintiff's opposition, at 18. The plaintiff further asserts that her EEOC Charge alleges intentional discrimination, citing to her claim that "BP knows this test prevents females from getting hired, and that is why they use it." Plaintiff's opposition at 18, n. 7. In its reply, defendant asserts that if, in fact, the plaintiff's complaint states a claim for disparate treatment, the same is insufficient under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Twombly requires that, while complaint need not contain "detailed factual allegations," it does have to set forth "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "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, ___, 129 S.Ct. 1937, 1949 (2009). The court finds that the plaintiff's complaint does set forth enough detail to include a claim for intentional discrimination.

The defendant asserts the plaintiff fails to set forth basics of an intentional discrimination claim such as an allegation that any comparator was treated more favorably. However, the court finds the complaint does have enough facts to find that the plaintiff alleges the defendant used testing which discriminated against women but not men. The defendant's motion to dismiss the plaintiff's claim under § 1981a shall be denied by separate Order.

Conclusion

In consideration of the foregoing, the court shall grant the defendant's motion to dismiss on the plaintiff's class claims beyond those applicants who failed to pass the WorkKeys test, grant said motion as to the claims for injunctive relief, and shall deny the defendant's motion to dismiss on the remaining grounds.

DONE and ORDERED.