Fortson v. COLUMBIA FARMS FEED MILL et al, No. 3:2013cv00051 - Document 25 (M.D. Ga. 2013)

Court Description: ORDER granting in part and denying in part 19 Motion to Dismiss Complaint; granting 23 Motion to Amend/Correct. The Court also orders Fortson to file proof of service of his Complaint on all Defendants who have not been dismissed. Such proof of service shall be filed within thirty days of today's Order.Ordered by Judge Clay D. Land on 09/23/2013 (bsh) ***
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION CAREY A. FORTSON, * Plaintiff, * vs. * CASE NO. 3:13-cv-51 (CDL) COLUMBIA FARMS FEED MILL; ROBERT * C. JOHNSON; BARRY CHRONIC; MICHELLE CARLSON; and MELVIN * DUTTON, * Defendants. * O R D E R Plaintiff Carey A. Fortson (“Fortson”), proceeding pro se, asserts employment discrimination claims against his former employer and its supervisory personnel, claiming that he was discriminated against based upon his race, gender, and age. These claims arise under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), 42 U.S.C. § 1981 (“§ 1981”), and the Age Discrimination Employment Act, 29 U.S.C. § 621 et seq., (“ADEA”). also alleges intentional Presently Dismiss state law infliction pending before Plaintiff’s Defendants contend claims of that negligent emotional the Second for Court Amended Fortson’s is Defendants’ Second Plaintiff supervision distress Complaint in (ECF Amended and (“IIED”). Motion No. to 19). Complaint (“Complaint”) should be dismissed because (1) Fortson’s Equal Employment Opportunity Commission (“EEOC”) charge was untimely filed; (2) the Complaint fails to state a claim upon which relief can be granted; (3) there is no such entity as “Columbia Farms Feed Mill”; (4) Defendants Johnson and “Columbia Farms Feed Mill” have not been served; and (5) Defendants Carlson, Cronic, and Dutton were not Fortson’s employers and thus cannot be liable. For the reasons set forth below, the Court dismisses Fortson’s Title VII claims, Fortson’s ADEA claim, and Fortson’s gender discrimination claims. The Court permits Fortson’s § 1981 racially hostile work environment and state law claims to go forward. The Court also grants Fortson’s motion to amend his Complaint to correct the name of Defendant Columbia Farms of Georgia (“Columbia Farms”) (ECF No. 23), and orders Fortson to file proof of service of his Complaint on all Defendants who have not been dismissed. Such proof of service shall be filed within thirty days of today’s Order. If Fortson does not timely file a proof of service as to the Defendants who have not been served, the Court will dismiss his claims as to those Defendants. FACTUAL ALLEGATIONS Fortson was employed by Columbia Farms as a loader in its feed mill. Columbia Farms terminated Fortson’s employment on July 27th, 2012 because Fortson was allegedly caught sleeping on 2 the job. his Fortson, who is African-American, alleges that during employment with Columbia Farms racially hostile work environment. he was subjected to a 2d Am. Compl. 5-8, ECF No. 11. Fortson claims that his coworkers yelled at him, cursed at him, and called him racial epithets twenty-one times over a tenmonth period. Id. He alleges that these acts caused him severe emotional distress and interfered with his ability to do his job. Id. at 8, 11-12. harassment relief. to Id. a at He also alleges that he reported this manager 2, 8. for He Columbia also Farms claims but that obtained the no managerial employees were not properly trained to respond to complaints of discrimination contends and that harassment. he was Id. subjected at 10. to a Finally, pattern Fortson of race discrimination that was extreme and outrageous. Id. at 11. On February Discrimination 12, with 2013, the Fortson Compl. EEOC. filed a Attach. Charge 1, Charge Discrimination, ECF No. 1-1 [hereinafter EEOC Charge]. charge, Fortson (African-American) alleged and age Title VII and the ADEA. discrimination (fifty-one based years) in on of of In his his race violation of Notice of the charge was mailed to Columbia Farms on February 15, 2013, and Fortson received a Notice of Right to Sue from the EEOC on February 26, 2013. Compl. Attach. 2, Dismissal & Notice of Rights, ECF No. 1-2. Fortson initiated this action on May 9, 2013. 3 MOTION TO DISMISS STANDARD When considering a 12(b)(6) motion to dismiss, the Court must accept complaint as and true all facts limit its consideration exhibits attached thereto. set forth to in the the plaintiff’s pleadings and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The complaint must include sufficient factual allegations “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “[A] formulaic recitation of the elements of a cause of action will not do[.]” Id. Although the complaint must contain factual allegations that “raise a reasonable expectation that discovery will reveal evidence of” the plaintiff’s claims, id. at 556, “Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because ‘it strikes a savvy judge that actual proof of those facts is improbable,’” Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556). 4 DISCUSSION I. Fortson’s Title VII Claims Fortson alleges that his employer, Columbia Farms, and its supervisory personnel discrimination proceeding in under subjected violation Title of VII him to Title must gender VII. comply A with and race plaintiff procedural requirements enumerated in the statute, including the duty to exhaust administrative remedies as a prerequisite to filing suit. 42 U.S.C. § 2000e-5; H&R Block E. Enters., Inc. v. Morris, 606 F.3d 1285, 1295 (11th Cir. 2010). “Failure to file a timely charge with the EEOC results in a bar of the claims contained in the untimely charge.” Jordan v. City of Montgomery, 283 F. App’x. 766, 767 (11th Cir. 2008) (per curium). In Georgia, a discrimination charge must be filed “within 180 days of the last discriminatory act.” 42 U.S.C. § 2000e-5(e)(1); H&R Block, 606 F.3d at 1295. Fortson’s EEOC charge, which is dated February 5, 2013 and was received by the EEOC on February 12, 2013, states that his employment was terminated on July 27, 2012, and that is the last possible discriminatory act. EEOC Charge 1. Fortson needed to file his EEOC charge within 180 days of the latest alleged act of discrimination, July 27, 2012. Therefore, Fortson’s EEOC charge was due on or before January 23, 2013. Fortson’s EEOC charge is dated February 5, 2013 and was not 5 received by the EEOC until February 12, 2013. Fortson’s Title VII claims are thus time-barred, and they must be dismissed. To the extent that Fortson attempts to assert Title VII claims against any of the individual Defendants, those claims must be dismissed because individuals cannot be held liable under Title VII unless they meet the definition of “employer,” and Fortson did not allege any facts to show that the named individuals meet that definition. Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006) (per curium). Accordingly, all of Fortson’s Title VII claims are dismissed. II. Fortson’s ADEA Claim Construing the Complaint liberally, Fortson asserts a claim under the ADEA for age discrimination. suit under requirements the as ADEA under is subject Title VII. A plaintiff bringing to the Kelly v. same Dun exhaustion & Bradstreet Corp., 457 F. App’x. 804, 805 (11th Cir. 2011) (per curium). Therefore, Fortson’s ADEA claim must be dismissed. III. Fortson’s § 1981 Claims Fortson arguably attempts to allege discrimination claims pursuant to § 1981. Section 1981, discrimination.” however, Hayden “proscribes v. 1166, 1168 (N.D. Ga. 1982). Atlanta race and gender 2d Am. Compl. 8-9. race, Newspapers, and 534 not sex, F. Supp. Accordingly, Fortson has failed to state a claim under § 1981 for gender discrimination. 6 The thrust of Fortson’s § 1981 race claim is that he was subjected to a racially hostile work environment. “Hostile work environment claims under section 1981 are based upon the wording of 42 U.S.C. § 1981(b),” which “Congress specifically amended . . . so plaintiffs could bring hostile work environment claims under that statute as well as under Title VII.” Shields v. Fort James Corp., 305 F.3d 1280, 1282 (11th Cir. 2002). To establish this claim, Fortson must prove that “‘the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Harrington v. Disney Reg’l Entm’t, Inc., 276 F. App’x. 863, 875 (11th Cir. 2007) (per curium) (quoting Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)). Fortson must show that: (1) he belongs to a protected group; (2) he has been subject to unwelcome harassment; (3) the harassment was based on a protected sufficiently severe characteristic; or pervasive to (4) the alter harassment the terms was and conditions of employment and create a discriminatorily abusive working environment; and (5) the employer is responsible for such environment under either a theory of vicarious or direct liability. Id. The Court finds that Plaintiff has sufficiently alleged a claim under § 1981 arising from an alleged racially hostile work 7 environment against Columbia Farms and its manager, Dutton.1 Accordingly, Defendants’ Motion to Dismiss that claim is denied as to Columbia Farms and Dutton. IV. Fortson’s State Law Claims A. Negligent Supervision Claim Fortson alleges negligent Columbia Farms. “A claim brought pursuant to Georgia negligently . . . supervises for supervision negligent law an subsequently harms the plaintiff.” . arises employee claims . when and . against supervision an employer that employee Farrell v. Time Serv., Inc., 178 F. Supp. 2d 1295, 1300 (N.D. Ga. 2001). The plaintiff must allege and prove “that the employer ‘knew or should have known of the employee’s propensity to engage in the conduct which caused the plaintiff’s injury.’” Id. (quoting Harper v. City of East Point, 237 Ga. App. 375, 376, 515 S.E.2d 623, 625 (1999)). Fortson alleged that he was verbally harassed by coworkers and that Columbia Farms failed to train its supervisors adequately on how to prohibit and respond to such harassment. 2d Am. Compl. 5-8, 10-11. claim are While Fortson’s allegations in support of this arguably conclusory, 1 the Court finds that his A supervisor, who contributes to the hostile environment and does nothing to correct it, may be liable under § 1981 in addition to the employee’s actual employer. See Bryant v. Jones, 575 F.3d 1281, 12941297 (11th Cir. 2009) (setting forth the elements required to prove a § 1981 hostile environment claim and analyzing claim in the §1983 context as to a county’s Chief Executive Officer and his three assistants in their individual capacities). 8 allegations, as a pro se litigant, are enough to avoid dismissal at this stage. B. IIED Claim To establish a claim for IIED, a plaintiff must allege facts showing intentional or reckless conduct that is extreme and outrageous and causes severe emotional distress. Tomczyk v. Jocks & Jills Rests., LLC, 269 F. App’x. 867, 870 (11th Cir. 2008) (per curium). harassment that Fortson alleges he was subject to pervasive constituted “extreme and outrageous causing him “severe emotional distress.” conduct” 2d Am. Compl. 11-12. He recites twenty-one instances of verbal abuse to support this claim and asserts that the supervisory employees did nothing to stop it despite his complaints. 2d. Am. Compl. 5-8. Considering Fortson’s pro se status, he has alleged sufficient facts to allow this claim to go forward. CONCLUSION Defendants’ Motion to Dismiss (ECF No. 19) is granted in part and alleges denied in part. discrimination To under the extent Fortson’s Title VII the claims are untimely and are dismissed. and Complaint ADEA, those Fortson has also failed to state a claim for gender discrimination under § 1981 and that claim is dismissed. Fortson’s § 1981 claims for a racially hostile work environment against Columbia Farms and Dutton and 9 Fortson’s state law claims for IIED and negligent supervision remain pending. Plaintiff shall serve any Defendant that has not yet been properly served with Plaintiff’s Complaint within thirty days of today’s Order. If service is not accomplished in that time, Defendants may file a renewed motion to dismiss for lack of proper service. IT IS SO ORDERED, this 23rd day of September, 2013. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 10