Ogletree v. Necco

PATRICIA L. OGLETREE, Plaintiff, v. EDWARD "BEAU" NECCO; BOB CARPENTER; ENA d/b/a NECCO;and CARVAKA, INC., Defendants.

CIVIL ACTION FILE NO. 1:16-cv-01858-WSD-AJB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

November 9, 2016

UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

This matter is presently before the Court on an amended motion to dismiss filed by Defendants Edward "Beau" Necco ("Necco"); Bob Carpenter ("Carpenter"); ENA, d/b/a NECCO ("ENA"); and Carvaka, Inc. ("Carvaka"). [Doc. 5]. For the reasons set forth herein, the undersigned RECOMMENDS that the District Judge GRANT the motion and DISMISS the complaint in its entirety.

I. Facts and Procedural History¹

On or about July 27, 2009, Plaintiff Patricia Ogletree was hired by ENA as an Administrative Assistant and Georgia Billing Specialist in Macon, Georgia. [Doc. 1 ¶ 25]. ENA is a not-for-profit company that provides therapeutic foster care, independent living, intensive home-based treatment, mental-health treatment, community living, and alternatives to secure detention. [Id. ¶ 7]. Carvaka is a for-profit entity that provides management and administrative services, human-resource services, and technology and consulting services to ENA. [Id. ¶¶ 11, 13]. During the time period relevant to this lawsuit, Necco was ENA's Chief Executive Officer and Carpenter was ENA's Chief Operating Officer, and they were both based in Ohio. [Id. ¶¶ 15, 17, 18, 21]. Necco and Carpenter both held significant shares of both ENA and Carvaka. [Id. ¶¶ 15, 16, 20, 22].

In her job, Plaintiff handled all of the invoice billing for the Department of Family and Children's Services and the Department of Juvenile Justice, and she hadcertain communications responsibilities. [Id. ¶ 5]. She was also required to attend certain after-hours business meetings and dinners, out-of-town "morale boosting" gatherings, and training events where Necco and Carpenter were present. [Id. ¶ 6].

Plaintiff felt that Necco and Carpenter sexually harassed her and subjected her to a hostile work environment. [Id. ¶¶ 27, 37, 44]. Necco and Carpenter would ask female employees about their sex lives and make comments about the female employees' body parts. [Id. ¶¶ 32-33]. Necco's language was "replete" with profanity during business meetings, conferences, teleconferences, and training sessions. [Id. ¶ 34]. Carpenter "routinely" used profanity in e-mails to staff. [Id. ¶ 36].

On several occasions during visits to the Georgia offices, Carpenter made inappropriate comments to Plaintiff, such as asking about her sex life and asking whether she was "getting enough" lately. [Id. ¶ 45]. On an occasion taking place in or around November 2012, Carpenter kissed her on the cheek and hugged her so hard that he picked her up off the floor. [Id. ¶¶ 46-47].

At the 2012 Christmas party, which was held on December 1, 2012, Necco became intoxicated to the point of almost falling down. [Id. ¶¶ 38-39; Doc. 12 at 16; Doc. 12-1 ¶ 4]. He told Plaintiff that she looked young and beautiful, told her that her lips were sexy, commented on her jaw line, and invaded her personal space severaltimes as he made the comments. [Doc. 1 ¶¶ 40-41]. He also propositioned Plaintiff for sex. [Id. ¶ 38]. Plaintiff then heard Necco say to another employee, "We are going to fuck like rabbits." [Id. ¶ 42].

In March 2013, Carpenter participated in an e-mail chain that appears to have been sent to all ENA staff. [Id. ¶ 35]. The subject of the e-mail chain was "Poop." [Id.]. In the e-mail chain, Carpenter wrote, "One of the funniest things I ever witnessed was sean davis [sic] shitting his pants in the Lexington parking lot." [Id.].

Sometime in May 2013, Plaintiff went to Atlanta to talk to an officer of the Equal Employment Opportunity Commission ("EEOC") about her discomfort with her treatment. [Doc. 12-1 ¶ 7].² The officer told Plaintiff that Plaintiff would need tonotify Necco, Carpenter, and the Human Resources home office (hereinafter, "HR") in writing about the offensive conduct and her discomfort. [Id.]. He also told her that it was likely she would be fired within about a week of providing the notice. [Id.].

The advice she received from the EEOC made Plaintiff afraid to file the charge until after she left the company. [Id. ¶ 10]. As a result, Plaintiff gave a statement on an intake form, but she did not file a charge that day. [Id. ¶ 9]. The EEOC officer did not tell her that she would lose her right to sue if she did not file her EEOC charge by a certain date. [Id. ¶ 10].

On or about June 24, 2013, Plaintiff resigned from her position with ENA. [Doc. 1 ¶ 26]. She contacted the EEOC to file her charge of discriminationapproximately six months later.³ [Doc. 12-1 ¶ 11]. On December 13, 2013, the EEOC issued ENA a Notice of Charge of Discrimination, which stated that Plaintiff was filing a charge on her own behalf, she was alleging sex discrimination and retaliation, and a signed copy of the charge would be mailed in approximately forty-five days. [Doc. 5-1 at 1]. On August 22, 2014, the EEOC forwarded to ENA a copy of Plaintiff's charge, which was dated August 8, 2014, and was stamped as having been received by the EEOC on August 18, 2014. [Id. at 5].

The charge alleged sex discrimination and retaliation against ENA.⁴ [Id.]. The particulars of the charge were as follows:

I. I was hired by the above named employer on July 27, 2009, as an Administrative Assistant. During my employment I was subjected to sexual harassment by Bob Carpenter, Chief Operative Officer. On several occasions he questioned me about my sex life asking ifI was, "getting any." Mr. Necco, Chief Executive Officer, openly discussed degrading and sexualized topics which caused me undue stress and made me feel uncomfortable. On June 24, 2013 I submitted my resignation letter due to the inability to tolerate language and behavior displayed by senior management.

II. I believe I was discriminated because of my sex (female) and retaliated against for opposing unlawful employment practices, in violation of Title VII of the Civil Rights Act of 1964, as amended.

[Id.].

Plaintiff, proceeding through counsel, initiated this matter by complaint on June 7, 2016. [Doc. 1]. She stated that the action was "authorized and instituted pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. (hereinafter 'Title VII') to correct unlawful employment practices on the basis of sex discrimination and to seek appropriate relief to the Plaintiff, Patricia L. Ogletree[,] who seeks declaratory and injunctive relief, back pay, front pay, and compensatory damages and redress for intentional infliction of emotional distress." [Doc. 1 ¶ 1]. Plaintiff contends that she was sexually harassed, subjected to a hostile work environment, and constructively discharged. [Id. ¶¶ 26, 27, 29].

On June 29, 2016, Defendants filed a motion to dismiss the complaint. [Doc. 4]. The following day, Defendants amended the motion to dismiss to clarify that the motion was filed on behalf of all four defendants. [Doc. 5]. After receiving twoextensions of time, Plaintiff filed a response to Defendants' amended motion to dismiss on August 22, 2016. [Doc. 12]. Defendants filed a reply brief on September 2, 2016. [Doc. 13]. With briefing complete, the Court now considers the amended motion.

II. Abandoned Claims

In the amended motion to dismiss, Defendants argue, among other things, that the Title VII claims against Necco and Carpenter are barred because there is no individual liability under Title VII; that the Title VII claims against Necco, Carpenter, and Carvaka are barred because none of those defendants had been named as a respondent in the charge of discrimination Plaintiff filed with the EEOC; and that any claim of intentional infliction of emotional distress is time-barred and barred by the "exclusive remedy" provisions of Georgia's Workers' Compensation Act. [Doc. 5 at 2, 11-20]. In response, Plaintiff concedes that the Title VII claims against Necco and Carpenter, as individuals, should be dismissed; concedes that the Title VII claims against Carvaka should be dismissed; and states that she "did not claim intentional infliction of emotional distress in her Complaint." [Doc. 12 at 1-2, 19-20].

Based on Plaintiff's concessions, it is clear that Plaintiff has abandoned her Title VII claims against Carvaka; her Title VII claims against Necco and Carpenter in their individual capacities; and any claim for intentional infliction of emotional distressthat her complaint could have been construed to assert. [Id.]. The only claims remaining would therefore be the Title VII claims Plaintiff asserts against ENA and against Necco and Carpenter in their official capacities. [Compare id. with Doc. 1 ¶ 1].

A claim asserted against a supervisory employee in his official capacity is redundant with a claim against the employer. See Cook v. Randolph Cnty., 573 F.3d 1143, 1149 (11^th Cir. 2009) (affirming dismissal of official-capacity claims asserted under 42 U.S.C. § 1983 where "functionally equivalent" claims remained pending against the employer); Wheeles v. Nelson's Elec. Motor Servs., 559 F. Supp. 2d 1260, 1267 (M.D. Ala. 2008) (holding that plaintiff's Title VII and ADEA claims against individual defendants in their official capacities were redundant and due to be dismissed because employer was also named as defendant); Cleveland v. KFC Nat'l Mgmt. Co., 948 F. Supp. 62, 66 (N.D. Ga. 1996) ("Where the employer has been sued directly, . . . the naming of individual employees in their official capacity is unnecessary and duplicative."). Any claim asserted against Necco or Carpenter in his official capacity is therefore redundant with a claim against ENA and thus is due to be dismissed.

For these reasons, the undersigned RECOMMENDS that the District Judge GRANT Defendants' motion to dismiss the Title VII claims asserted against Necco,Carpenter, and Carvaka; GRANT...