Gresham v. Waffle House, Inc., Civ. A. No. C83-2539A.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
• Citation: 586 F. Supp. 1442
• Docket Number: Civ. A. No. C83-2539A.
• Parties: Alene GRESHAM, Plaintiff, v. WAFFLE HOUSE, INC., Defendant.
• Decision Date: 21 May 1984

586 F. Supp. 1442

Alene GRESHAM, Plaintiff,
v.
WAFFLE HOUSE, INC., Defendant.

Civ. A. No. C83-2539A.

United States District Court, N.D. Georgia, Atlanta Division.

May 21, 1984.

586 F. Supp. 1443

James W. Howard, Floyd, Howard & Ware, Atlanta, Ga., for plaintiff.

Alexander E. Wilson, Kieran Shanahan, Atlanta, Ga., Alston & Bird, J. Michael Upton, Norcross, Ga., for defendant.

ORDER

SHOOB, District Judge.

This employment discrimination action is presently before the Court on (1) defendant's renewed motion to dismiss, and (2) plaintiff's motion to strike and for entry of default and default judgment. The procedural history of this case is set forth briefly below, and the merits of the pending motions are addressed thereafter.

PROCEDURAL HISTORY

Plaintiff, a white female proceeding pro se, filed this action on November 17, 1983, using a form Title VII complaint. The complaint essentially alleged that she had been discharged from her job with defendant because of her marriage to a black man. Complaint ¶¶ 6 & 9.

On December 28, 1983, defendant moved to dismiss plaintiff's complaint on the grounds that an employer's discharge of an employee due to his or her interracial marriage is not a violation of Title VII. Plaintiff failed to respond to this motion within the 10 days permitted by Local Court Rule 91.2, and the Court entered an order notifying plaintiff that if she did not respond within 10 days defendant's motion would be granted as unopposed. Although the Court's order was filed with the clerk of court on January 20, 1984, the clerk failed to mail a copy of the order to plaintiff until January 30, 1984, the date her response was due. Even though she had not yet received the Court's order, plaintiff nevertheless did file a response in opposition to defendant's motion to dismiss on January 31, 1984.

On February 27, 1984, the Court having not yet ruled on defendant's motion, attorney James W. Howard of the firm of Floyd, Howard & Ware filed a notice of appearance on behalf of plaintiff, together with a supplemental brief in opposition to defendant's motion to dismiss and an amended complaint. The amended complaint restated plaintiff's original Title VII allegations (Count One) and added claims of retaliatory discharge and violations of 42 U.S.C. § 1981. (Counts Two, Three, and Four.)

Defendant responded on March 12, 1984, with a renewed motion to dismiss, reasserting the legal arguments presented in its

586 F. Supp. 1444

original motion and also contending that dismissal was warranted because of plaintiff's untimely response to the Court's January 20, 1984, order. Plaintiff then moved to strike defendant's motions to dismiss and for entry of default and default judgment on the grounds that defendant had failed to file an answer to either plaintiff's original complaint or the amended complaint. Defendant opposes these motions and seeks to recover its attorney's fees expended in responding to them pursuant to Fed.R.Civ.P. 11

DISCUSSION

I.

Plaintiff's motion to strike and motion for entry of default and default judgment are DENIED. It is true that defendant was served with plaintiff's amended complaint on February 27, 1984, but did not file its renewed motion to dismiss until March 12, 1984, outside the 10-day period allowed under Fed.R.Civ.P. 15(a) for response to an amended pleading. Such a technical default, however, does not warrant the harsh sanctions sought by plaintiff. On the other hand, since plaintiff's motions are not entirely without foundation, defendant is not entitled to recover its expenses under Rule 11.

II.

In its renewed motion to dismiss,¹ defendant again argues that Title VII does not proscribe discrimination in employment on the basis of an employee's interracial marriage. Two other judges of this Court have so held. Parr v. United Family Life Ins. Co., Civil Action No. C83-26G (N.D.Ga. June 15, 1983) (O'Kelley, J.); Adams v. Governor's Committee on Postsecondary Education, 26 Fair Empl.Prac.Cas. (BNA) 1348 (N.D.Ga.1981) (Evans, J.).

Both Parr and Adams relied on the operative language of Title VII, which makes it unlawful for an employer to discriminate against any individual "because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a) (emphasis added). Those decisions concluded that Congress did not intend to proscribe private employer discrimination on the basis of an individual's association with a member of another race, because such discrimination was not based on that individual's race.

In support of their interpretation of the statutory language, both the Parr and Adams opinions cited the district court's decision in Ripp v. Dobbs Houses, Inc., 366 F.Supp. 205 (N.D.Ala.1973), which held that a white employee who was discharged for associating with black co-workers had not stated a claim under Title VII. In addition, the Parr decision noted the broader language used by Congress in providing protection for federal workers under Title VII,² reasoning that Congress could have enacted a similar provision for non-federal employees if it had intended to proscribe discrimination on the basis of such an employee's relationship to a person of another race.

Directly contrary to the Parr and Adams decisions are the district courts' opinions in Holiday v. Belle's Restaurant, 409 F.Supp. 904 (W.D.Pa.1976), and Whitney v. Greater New York Corp. of Seventh-Day Adventists, 401 F.Supp. 1363 (S.D.N.Y....