Cochran v. Five Points Temporaries, LLC

• Decision Date: 04 March 2013
• Docket Number: Case No. 2:10–cv–3522–SLB.
• Parties: Amy COCHRAN, Plaintiff, v. FIVE POINTS TEMPORARIES, LLC; David McNeil; Tracy McNeil, Defendants.
• Court: U.S. District Court — Northern District of Alabama

907 F.Supp.2d 1260

Amy COCHRAN, Plaintiff,

v.FIVE POINTS TEMPORARIES, LLC; David McNeil; Tracy McNeil, Defendants.

Case No. 2:10–cv–3522–SLB.

United States District Court,

N.D. Alabama,

Southern Division.

Sept. 28, 2012.

Memorandum Denying Motion to Amend March 4, 2013.

Barry V. Frederick, Brandi B. Frederick, The Frederick Firm, Birmingham, AL, for Plaintiff.

Carrie Joanne Dunn, E. Britton Monroe, Stephen E. Whitehead, Taffi S. Stewart, Lloyd, Gray, Whitehead & Monroe, PC, Birmingham, AL, for Defendants.

MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, Chief Judge.

This case is before the court on defendants' Motion for Judgment on the Pleadings. (Doc. 38) ¹. Upon consideration of the record, the submissions of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that defendants' Motion is due to be granted in part and denied in part.

I. STANDARD OF REVIEW

Fed.R.Civ.P. 12(c) provides that “[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” ² “Judgment on the pleadings is appropriate only when the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Moore v. Liberty Nat. Life Ins. Co., 267 F.3d 1209, 1213 (11th Cir.2001) (internal quotation marks omitted). When considering a motion for judgment on the pleadings the court “ ‘must accept all facts in the complaint as true and view them in the light most favorable to the plaintiff [ ].’ ” Hardy v. Regions Mortg., Inc., 449 F.3d 1357, 1359 (11th Cir.2006) (quoting Moore, 267 F.3d at 1213). “Dismissal is not appropriate unless the complaint lacks sufficient factual matter to state a facially plausible claim for relief that allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct.” Jiles v. United Parcel Service, Inc., 413 Fed.Appx. 173, 174 (11th Cir.2011) (per curiam) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

II. FACTS³

Plaintiff, Amy Cochran, is a former employee of defendant, Five Points, a staffing company owned by defendants, Tracy McNeil and David McNeil. (Doc. 36 ¶¶ 5, 9–11.) After working for Five Points from 2002 to 2006, plaintiff voluntarily terminated her employment in 2006. ( Id. ¶¶ 30–31.) She then began working for a competitor of Five Points, Lyons HR. ( Id. ¶¶ 35–37.) Five Points rehired plaintiff in May 2008 as a sales representative. ( Id. ¶ 32.)

Before departing Lyons HR, plaintiff entered into a non-compete and non-solicitation agreement (the “non-compete agreement”) with the company. ( Id. ¶ 40.) Plaintiff brought a copy of the non-compete agreement to Tracy McNeil who told plaintiff that attorneys for Five Points would review it. ( Id. ¶ 41.) According to plaintiff, Tracy McNeil told plaintiff that attorneys for Five Points reviewed the non-compete agreement and that the “attorneys stated that [it] was ‘not worth the paper on which it was written.’ ” ( Id. ¶ 42.) Plaintiff alleges that Tracy McNeil also represented on behalf of defendants that Five Points would pay her attorneys' fees and expenses in the event plaintiff was sued for violation of the non-compete agreement. ( Id. ¶ 44.)

In June 2008, Lyons HR filed a lawsuit against plaintiff and Five Points in Alabama state court for allegedly violating the non-compete agreement. ( Id. ¶ 48.) Tracy and David McNeil agreed to pay for plaintiff's legal expenses in the lawsuit, and the Frederick Firm was hired to represent her. ( Id. ¶¶ 49–52.) On behalf of Five Points, David McNeil signed an engagement letter with the Frederick Firm wherein Five Points agreed to pay the legal fees and expenses associated with the firm's representation of plaintiff in the Lyons HR case. ( Id. ¶ 106.) The Amended Complaint states that at the time David McNeil signed the agreement attached to the engagement letter, he thought Five Points retained a right to alter said agreement. ( Id. ¶ 107.) However, plaintiff claims no such right ever existed and that none of the defendants retained any power to “pre-authorize work of The Frederick Firm in its representation” of plaintiff in the Lyons HR suit “as a condition of Five Points' contractual obligation to pay The Frederick Firm's bills for that representation.” ( Id. ¶¶ 108–09.)

Initially, Five Points paid for some of plaintiff's attorneys' fees and expenses incurred in defense of the Lyons HR suit. ( Id. ¶ 61.) Then, in February 2009, Five Points stopped paying for plaintiff's representation by the Fredrick Firm in the Lyons HR case. ( Id. ¶ 71.) On February 4, 2009, David McNeil is alleged to have told the Fredericks that they were “ ‘not ... authorized to do any more work’ ” on plaintiff's case. ( Id. ¶ 72.) Plaintiff also alleges that around this same time, David McNeil told her not to talk to the Fredericks, and she further claims that Tracy McNeil said plaintiff would be fired if she talked to the Fredericks. ( Id. ¶¶ 68–69.) In December 2010, the Frederick Firm filed this lawsuit on behalf of plaintiff against Five Points and David and Tracy McNeil, asserting counts of race discrimination, retaliation, intentional interference with business relationship, fraud, misrepresentation, and breach of contract. ( See doc. 1.) The Amended Complaint makes similar claims. (Doc. 36.)

In the Amended Complaint, plaintiff alleges that during her last period of employment with Five Points she frequently heard Tracy McNeil and other Five Points employees make racially derogatory remarks in reference to the African–American employees who worked at Five Points. (Doc. 36 ¶¶ 75, 78, 82.) Plaintiff also claims that Tracy McNeil instituted racially discriminatory placement practices at Five Points. ( Id. ¶¶ 75–77.) To summarize, the Amended Complaint alleges that Tracy McNeil would fill customers' requests for temporary employees based on the race of employees as well as the racial preferences expressed by customers. ( Id.) Plaintiff is Caucasian. ( Id. ¶ 22.) The Amended Complaint states that plaintiff was “personally offended by and opposed” these placement practices and disparaging remarks. ( Id. ¶ 80.)

On February 9, 2009, plaintiff filed her first Charge with the Equal Employment Opportunity Commission (“EEOC”) against Five Points alleging racially hostile environment and race discrimination. ( Id. ¶ 85.) Plaintiff alleges that after Five Points received notice of her first EEOC Charge the company “substantially changed the terms and conditions of [her] employment.” ( Id. ¶¶ 87–95.) Then, on March 12, 2009, plaintiff filed her second EEOC Charge based on “Five Points' retaliatory actions taken in response to Plaintiff's filing her first EEOC charge.” ( Id. ¶ 96.) Plaintiff alleges that after receiving notice of her second EEOC Charge, Five Points further altered the conditions of her employment. ( Id. ¶¶ 97–100.) Plaintiff's employment at Five Points was terminated on March 16, 2009. ( Id. ¶ 101.)

Defendants' Motion for Judgment on the Pleadings challenges every count of the Amended Complaint except for Count II (retaliation in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964). (Doc. 38.)

III. DISCUSSION

A. COUNT I—RACIALLY HOSTILE WORK ENVIRONMENT

Defendants' Memorandum in Support of their Motion argues that plaintiff's discrimination claim for a racially hostile work environment under Count I of the Amended Complaint is due to be dismissed because the alleged harassment was not based on plaintiff's race, and the allegations on which her claim is based are not objectively discriminatory. (Doc. 39 at 8.) Defendants' contention that plaintiff does not allege discrimination based on her race but the race of her co-workers raises the issue of whether plaintiff's claims fall within the scope of Title VII.

1. Whether Plaintiff is a “Person Aggrieved” Under Title VII

Although the Amended Complaint alleges that plaintiff endured a hostile work environment based on race and that she was injured by defendants' conduct, the court is of the opinion that plaintiff fails to state a claim for racial discrimination hostile work environment because she is not a “person aggrieved” within the “zone of interest” of Title VII.

Title VII of the Civil Rights Act of 1964 codified at 42 U.S.C. § 2000e–2(a)(1) prohibits employers from discriminating against “any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” Subsection (a)(2) provides that an employer may not “limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(2). Among other observations, the Eleventh Circuit has stated that in terms of a claim for hostile work environment, “Title VII is not a civility code, and not all profane ... language or conduct will constitute discrimination in the terms and conditions of employment.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir.2010) (en banc). The court has further explained that hostilework environment is a type of disparate treatment as opposed to disparate impact: “Disparate treatment can take the form either of a ‘tangible employment action,’ such as a firing or demotion, or of a ‘hostile work environment’ that changes ‘the terms and conditions of employment, even though the employee is not discharged, demoted, or reassigned.’ ” Id. (quoting Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 (11th Cir.2004)).

Additionally, the statute states that after exhaustion of one's administrative remedies, a civil action under Title VII “may be brought ... by the person claiming to be aggrieved.” 42 U.S.C. § 2000e–5(f)(1...