Burnett v. Harvard Drug Grp., LLC

MICHAEL BURNETT, Plaintiff, v. THE HARVARD DRUG GROUP, LLC, and AEROTEK, INC., Defendants.

Civil Action No. CV-13-S-1620-NE

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

DONE: January 21, 2014

MEMORANDUM OPINION AND ORDER

Plaintiff, Michael Burnett, filed a complaint on August 29, 2013, asserting claims against The Harvard Drug Group, LLC ("Harvard"), and Aerotek, Inc. ("Aerotek"), two entities that he claims were formerly his joint employers.¹ His complaint asserted three claims against both defendants: (1) "Race Discrimination Disparate Treatment" pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and 42 U.S.C. § 1981 (Count One); (2) "Race Discrimination Hostile Work Environment" pursuant to Title VII and 42 U.S.C. § 1981 (Count Two); and (3) "Race Discrimination Wrongful Termination" pursuant to Title VII and 42 U.S.C. § 1981 (Count Three).² He also asserts one claim solely against defendant Aerotek: i.e., "Aerotek, Inc. Retaliation in Violation of TitleVII" (Count Four), and one claim solely against Harvard: i.e., "The Harvard Drug Group, L.L.C. Negligent Hiring, Training, Supervision and Retention" (Count Five).³ The case currently is before the court on "The Harvard Drug Group L.L.C.'s Partial Motion to Dismiss" Counts One and Five for failure to state a claim upon which relief can be granted.⁴ Upon consideration of the motion, pleadings, and briefs, the court concludes that Harvard's motion should be granted in part, but also denied in part.

I. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a complaint for, among other reasons, "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). This rule must be read together with Rule 8(a), which requires that a pleading contain only a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While that pleading standard does not require "detailed factual allegations," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 550 (2007), it does demand "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). As the Supreme Court stated in Iqbal:

A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." [Twombly,550 U.S., at 555]. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id., at 557.

To survive a motion to dismiss founded upon Federal Rule of Civil Procedure 12(b)(6), [for failure to state a claim upon which relief can be granted], a complaint must contain sufficient factual matter, accepted as true, to "state a claim for 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. Id., at 556. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id., at 557 (brackets omitted).

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d, at 157-158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not "show[n]" — "that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, 556 U.S. at 678-79 (emphasis added).

II. RELEVANT ALLEGATIONS OF PLAINTIFF'S COMPLAINT⁵

Plaintiff is a bi-racial male, being half Caucasian and half African American.⁶ He was placed by Aerotek to work at Harvard's Decatur, Alabama facility on April 10, 2012.⁷ Plaintiff alleges that Harvard and Aerotek were his "joint employers."⁸ When plaintiff first began working at Harvard, he claims that there were no problems because his co-workers perceived him as white due to the color of his skin.⁹ By the end of April of 2012, however, plaintiff's white co-workers discovered that he was bi-racial.¹⁰ Plaintiff alleges that, upon that discovery, the way in which he was treatedimmediately changed.¹¹ Specifically, the majority of his white co-workers refused to talk to him and excluded him from conversations.¹²

Plaintiff's white co-workers showed him a list of about 29 people whose employment had been terminated, and all, or almost all, of those individuals were black.¹³ White co-workers joked and made racially derogatory comments on a daily basis, and parodied African Americans by talking in exaggerated accents which they called "ebonics."¹⁴ A white, male co-worker pretended to be a black woman, and the other workers laughed at that man's portrayal.¹⁵ A white co-worker remarked that other employees shouldn't ask anything of a black former co-worker named Shanna, because Shanna would slash their tires, and another white co-worker called a different black former co-worker by the nickname "She-na-na."¹⁶

When a new black employee began working at Harvard, the white employees joked about who would train her, and eventually asked plaintiff and the only other black employee to do that job because no one else wanted to.¹⁷

The white employees allegedly made derogatory and threatening commentswithin plaintiff's hearing; however, they would not speak directly to him.¹⁸ For example, a white, male co-worker made the comment that, "it'll eat the ink off your arms," when plaintiff was the only individual in the room with visible tattoos on his arms.¹⁹

Additionally, once it became common knowledge that plaintiff was bi-racial, they ignored him or waited several minutes before responding whenever he asked his white co-workers for assistance.²⁰ White co-workers would sometimes pretend to be members of the Ku Klux Klan, and state that they had a "meeting" that night.²¹

Upon arriving to work on May 7, 2012,²² plaintiff allegedly witnessed a white, female co-worker run down the hallway and erase a picture on the white board that depicted plaintiff behind bars.²³ Plaintiff understood this conduct to mean that his co-workers did not expect him at work that day.²⁴ In fact, after plaintiff left Harvard's premises that day, Scott Urquhart from Aerotek called and informed plaintiff that hisassignment was ending because he "didn't fit in."²⁵

III. DISCUSSION

A. Disparate Treatment Claim

Defendant asserts that plaintiff has failed to state sufficient facts to support his claim for disparate treatment discrimination (Count One). To establish a prima facie case of race-based disparate treatment, a plaintiff generally must show that: (1) he is a member of a protected class, (2) he suffered an adverse employment action, (3) the employer replaced him with someone outside his protected class or otherwise treated similarly situated employees outside his protected class more favorably, and (4) he was qualified to perform the duties of his job. See, e.g., Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002); Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir. 1984).²⁶

"Although a Title VII complaint need not allege facts sufficient to make out a classic McDonnell Douglas prima facie case, it must provide 'enough factual matter (taken as true) to suggest' intentional . . . discrimination." Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992, 997, 152 L. Ed. 2d 1 (2002), and Twombly, 127 S. Ct. at 1965). In addition to containing well-pleaded factual allegations,complaints must also meet the "plausibility standard" set forth in Twombly and Iqbal. See Iqbal, 129 S. Ct. at 1949-50.

Bowers v. Board of Regents of University System of Georgia, 509 F. App'x 906, 910 (11th Cir. 2013).

In addition to the factual allegations set forth above, plaintiff states the following to support his disparate treatment claim:

46. Plaintiff has been discriminated against on the basis of race in regard to disparate treatment and other adverse terms and conditions of

...