Cobb v. Marshall, Civil Action No. 2:06cv675-ID.

• Decision Date: 14 March 2007
• Docket Number: Civil Action No. 2:06cv675-ID.
• Citation: 481 F.Supp.2d 1248
• Parties: Susie COBB, Plaintiff, v. D.T. MARSHALL, individually and in his official capacity as Sheriff of Montgomery County, Alabama, Defendant.
• Court: U.S. District Court — Middle District of Alabama

481 F.Supp.2d 1248

Susie COBB, Plaintiff, v. D.T. MARSHALL, individually and in his official capacity as Sheriff of Montgomery County, Alabama, Defendant.

Civil Action No. 2:06cv675-ID.

United States District Court, M.D. Alabama, Northern Division.

March 14, 2007.

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Deborah Moore Nickson, Montgomery, AL, for Plaintiff.

Constance Caldwell Walker, Haskell Slaughter Young & Rediker LLC, Thomas T. Gallion, III, Haskell Slaughter Young & Gallion LLC, Montgomery, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

DE MENT, Senior District Judge.

Before the court is Defendant D.T. Marshall's motion to dismiss. (Doc. No. 4.) Plaintiff Susie Cobb filed a response in opposition to the motion. (Doc. No. 7.) After careful consideration of the arguments of counsel and the applicable law, the court finds that Defendant's motion to dismiss is due to be granted as to some claims, but denied as to others. The court also on its own initiative shall require Plaintiff to replead some of her claims.

I. JURISDICTION AND VENUE

The court exercises subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1367 (supplemental jurisdiction). The parties do not contest personal jurisdiction or venue, and the court finds adequate allegations of both.

II. STANDARD OF REVIEW

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint because the plaintiff has failed to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion questions the legal sufficiency of `a complaint; therefore, in assessing the merits of a Rule 12(b)(6) motion, the court must assume that all the factual allegations set forth in the complaint are true. See United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). Moreover, all factual allegations are to be construed in the light most favorable to the plaintiff. See Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989).

Generally, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." In re Johannessen, 76 F.3d 347, 349 (11th Cir.1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Braden v. Piggly Wiggly, 4 F.Supp.2d 1357, 1360 (M.D.Ala. 1998). In 42 U.S.C. § 1983 actions, however, where government officials sued in their individual capacities may be entitled to qualified immunity, the Eleventh Circuit has "tightened" the pleading requirements. GJR Investments, Inc. v. County of E scambia, Fla, 132 F.3d 1359, 1367 (11th Cir.1998); see also Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir.2001) (recognizing that, in the Eleventh Circuit, a complaint must be pleaded with "heightened specificity ... in civil rights actions against public officials who may be entitled to qualified immunity"). In Oladeinde v. City of Birmingham, the Eleventh Circuit held that in cases where qualified immunity is implicated, "some factual detail is necessary, especially if [the court is] to be able to see that the allegedly violated right was clearly established when the allegedly wrongful acts occurred." 963 F.2d 1481, 1485 (11th Cir.1992). Accordingly, in determining whether a plaintiff has stated a § 1983 claim against a defendant in his or her individual capacity, courts must be "guided both by the regular 12(b)(6) standard and by the heightened pleading requirement." GJR Investments, 132 F.3d at 1367.

III. BACKGROUND

As alleged in the complaint, Plaintiff began employment as a correctional officer for, the Montgomery County Sheriffs Department in August of 1996. Plaintiff contends that, during her employment, she has been subjected to unlawful employment discrimination by reason of her sex (hostile work environment sexual harassment) and her race and also has endured retaliation for opposing discrimination in the workplace. She predicates liability under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 ("Title VII"); the Fourteenth Amendment (equal protection), as enforced by 42 U.S.C. § 1983; and state law.

IV. DISCUSSION

Defendant asserts several grounds in support of his motion to dismiss. The court will address each argument in turn.

A. Title VII: Counts I, v. and VI

In Counts I, V and VI, Plaintiff brings claims under Title VII. Liberally construing the allegations in the complaint, the court finds that these three counts seek redress for hostile work environment sexual harassment (Count I), retaliation (Count V) and race discrimination (Count VI). Defendant urges dismissal of Counts I, V and VI on procedural grounds and on the merits.

1. Scope of the EEOC Charge

Defendant asserts that Count I of the complaint, which arises from allegations that Plaintiffs supervisor sexually harassed her, is due to be dismissed because it "exceed[s] the scope" of Plaintiffs charge of discrimination filed with the Equal Employment Opportunity Commission ("EEOC").¹(Doc. No. 5 at 9-10.) For the reasons to follow, the court agrees.

As a prerequisite to filing a lawsuit, a Title VII employee must exhaust his or her administrative remedies by timely filing a charge of discrimination with the EEOC. See Alexander v. Fulton County, Georgia, 207 F.3d 1303, 1332 (11th Cir.2000) (citing 42 U.S.C. § 2000e-5). The EEOC charge must "contain, among other things, clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.'" Id. (quoting 29 C.F.R. § 1601.12(a)(3)). "A plaintiffs judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. In the latter regard, the Eleventh Circuit has stated: "As long as allegations in the judicial complaint and proof are `reasonably related' to charges in the administrative filing and `no material differences' between them exist, the court will entertain them." Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989) (citations omitted). "Judicial claims which serve to amplify, clarify, or more clearly focus earlier EEO complaints are appropriate. Allegations of new acts of discrimination, offered as the essential basis for the requested judicial review are not appropriate." Id.

The court begins by examining Plaintiffs EEOC charge.² See Alexander, 207 F.3d at 1332 ("The starting point of ascertaining the permissible scope of a judicial complaint alleging employment discrimination is the administrative charge and investigation."). The EEOC template charge which Plaintiff filed requested her to state the grounds upon which the "discrimination [is] based" by checking the appropriate boxes. (Ex. to Doc. No. 5.) Plaintiff marked the boxes for "race" and "age" discrimination and "retaliation," but did not check the box labeled "sex" discrimination. (Id) Plaintiff also provided a typewritten narrative statement with her charge, but that statement is devoid of any reference to sexual harassment or sex discrimination. (Id.) In that statement, Plaintiff predicates her claims upon her belief that "she ha[s] been discriminated against because of [her] race, Black, [her] age, 67, and in retaliation for having filed a previous charge" and for testifying as a witness for a co-employee who also "filed a charge" against Plaintiff's employer. (Id.) The narrative statement does not allude to or even generally reference sex discrimination or sexual harassment.

The court finds that Plaintiffs allegations in Count I of the complaint, seeking redress for sexual harassment pursuant to Title VII, are not reasonably related to the claims in her EEOC charge for race discrimination, age discrimination and retaliation. (Compl. ¶¶ 16-17); see Daniels v. Mobile Register, Inc., No. Civ. A. 04-0832-L, 2005 WL 1505856, *11 (S.D.Ala. 2005) (finding that unexhausted claim for sexual harassment was "not reasonably related to the EEOC charge alleging race discrimination"). Rather, the court finds that the sexual harassment claim constitutes a "new act[]" of discrimination which must be administratively exhausted before the EEOC. Wu, 863 F.2d at 1547. Consequently, the court finds that Plaintiffs Title VII sexual harassment claim in Count I is beyond the scope of her EEOC charge and is due to be dismissed.

Defendant raises the same argument concerning Plaintiffs race discrimination claim in Count VI (see Doc. No. 5 at 11), but the court is not persuaded that a sufficient basis for dismissal has been advanced under the liberal "reasonably related" standard. Wu, 863 F.2d at 1547. In the latter regard, therefore, Defendant's motion to dismiss is due to be denied.

2. Verification of EEOC charges

Defendant argues that Plaintiffs Title VII claims should be dismissed due to Plaintiffs purported failure to verify her EEOC charge. As Defendant correctly cites, the relevant EEOC regulations pertaining to a claimant's filing of an EEOC charge provide that a charge "shall be in writing and signed and shall be verified." 29 C.F.R. 1601.9 (2007). Defendant, however, incorrectly assumes that a "verified" charge only includes a sworn charge. As set out in another EEOC regulation, which Defendant did not cite, "verified" means "sworn to or affirmed before a notary public, designated representative of the Commission, or other person duly authorized by law to administer oaths and take acknowledgments, or supported by an unsworn declaration in writing under penalty of perjury." 29 C.F.R. § 1601.3(a) (2007) (emphasis added).

Here, Plaintiff signed her EEOC charge based upon her declaration "under penalty of perjury that the foregoing is true and correct." (Ex. to Doc. No. 5.)...