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Henley v. Turner Broadcasting System, Inc.

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

July 25, 2017




         This matter is before the Court on Defendants Turner Broadcasting System, Inc. (“TBS”), Time Warner Inc. (“Time Warner”), Cable News Network, Inc. (“CNN”), and Turner Services, Inc.'s (“TS”) (together, “Defendants”) Motion to Dismiss, Strike, and/or for More Definite Statement of Plaintiffs' Complaint [17] (“Motion to Dismiss”), Plaintiffs Celeslie Henley (“Henley”) and Ernest Colbert, Jr.'s (“Colbert”) (together, “Plaintiffs”) Motion for Leave to File Surreply in Opposition to Defendants' Reply in Support of its [sic] Motion to Dismiss [34] (“Surreply Motion”), and Plaintiffs' Motion for Leave to Amend the Complaint to Voluntarily Withdraw its [sic] Original Complaint [27] (“Motion to Amend”).

         I. BACKGROUND

         A. Henley's Allegations

         Plaintiff Henley is an African-American woman. (Compl. ¶ 9). She is forty-four years old and worked for seven years as an Executive Administrative Assistant at CNN. (Compl. ¶¶ 9, 59, 68).[1] Before she took maternity leave in March 2013, Henley received favorable performance reviews and a bonus for her work ethic. (Compl. ¶¶ 59, 70). When she returned from maternity leave, she “quickly realized that the work environment changed for the worst.” (Compl. ¶ 59). Her workload increased and her requests for additional support staff were denied. (Compl. ¶¶ 43, 59). She “was required to work 12 to 13 hour shifts and remain on-call . . . while other Caucasian executive assistants, in the same department, were only required to work from 8:00A.M. to 4:00P.M.” (Compl. ¶¶ 43, 69).[2] She was “written up” for failing to timely file an expense report, which, she alleges, should have been handled by others while she was on maternity leave. (Compl. ¶¶ 43, 59, 71). She also was written up for failing to file a credit card report on time. (Compl. ¶ 71).

         On January 9, 2014, Henley emailed Renee White (“White”), the Human Resource Director, complaining about “the discrimination and mistreatment” she received from her managers, including Stuart Snyder, the President and COO of CNN's AYAKAM division. (Compl. ¶¶ 9, 35, 59).[3] Plaintiffs do not offer further information about Henley's internal complaint. White met with Henley, told her that she would investigate Henley's claims, and placed her on administrative leave until the investigation was concluded. (Compl. ¶ 59). On January 13, 2014, White told Henley that she was unable to substantiate Henley's allegations and that there was “no disparity in the Cartoon Networks employees' salaries across Turner.” (Compl. ¶ 59). White said she would speak with “the Legal department” the next day “to determine a resolution for Ms. Henley's concerns.” (Compl. ¶ 59).

         On January 14, 2014, White called Henley and told her she was being terminated “for failing to file a timely expense report which led to the assessment of fees.” (Compl. ¶ 59). White explained that Henley's termination was unrelated to her discrimination claims “because [White's] investigation had been closed.” (Compl. ¶ 59). Stuart Snyder also was on the call. (Compl. ¶ 59). After the call, Henley's work telephone was disabled, she was barred from returning to the office to pack her personal belongings, and she was placed on Turner's “No Rehire Code” list. (Compl. ¶ 59). Henley claims she was discriminated against based on her race, sex and pregnancy, and was terminated in retaliation for her complaint to White. (Compl. ¶ 9).

         B. Colbert's Allegations

         Colbert is African-American and forty-four years old. (Compl. ¶ 10). He has a marketing degree from the University of West Georgia, and has worked for TBS for approximately twenty years. (Compl. ¶ 10). In 2007, Henley was promoted to Manager but was not given a “formal job description” and was required to perform Senior Manager work on a salary below his “pay grade.” (Compl. ¶¶ 36, 42, 57). He alleges he was paid “less than Caucasian employees in the same pay grade performing the same job.” (Compl. ¶¶ 10, 42). Colbert claims he requested, but was denied, a promotion or pay increase while “a similarly situated Caucasian woman in his department” received several pay grade increases. (Compl. ¶¶ 39, 67; see Compl. ¶ 58 (“The Caucasian who held his position previously was promoted to a job grade several levels above Mr. Colbert while performing the exact same job duties as Mr. Colbert.”)). Although Colbert was told in 2007 that he “would soon be promoted to Senior Manager, ” he was not promoted to that position until August 2016. (Compl. ¶ 66). He claims there was no “justification and/or reasoning” for this delay, and that he “is still under paid [sic] in comparison to the Caucasian Senior Managers” in the Programming and Marketing divisions where he and five other African-Americans work. (Compl. ¶¶ 42, 58, 66).[4] Henley alleges that, until he was promoted to Senior Manager, TBS failed to maintain his personnel file and that this “nullified” his “years of . . . positive performance evaluations.” (Compl. ¶¶ 10, 36, 42, 57).

         C. Plaintiffs' Class-Wide Allegations

         Plaintiffs allege that Defendants have engaged in a pattern and practice of racial discrimination in performance evaluations, compensation, promotions, and terminations. (Compl. ¶¶ 6, 26).

         1. Performance Evaluations

         Plaintiffs allege that “[TBS] and/or CNN . . . maintain[] written and unwritten policies and practices” that discriminate against African-American employees in their performance evaluations. (Compl. ¶ 26).[5] Specifically, Plaintiffs allege that “performance evaluations are conducted by managers exercising undue discretion with little or no oversight” and that this results in “biased and inconsistent [performance] determinations.” (Compl. ¶¶ 3, 26, 32). Plaintiffs rely on an “HR Reporting and Analytics” report from July 22, 2013 (the “HR Report”), which shows that, from 2010 to the first quarter of 2013, employees “of color” received a lower performance rating than the average employee in TBS's News, Finance & Accounting, Legal, Public Relations, and Strategy divisions. ([1.2] at 1, 3, 7-8, 10-11; Compl. ¶ 33).[6] Plaintiffs claim that African-American employees are harmed because their performance ratings impact their compensation and promotion opportunities.

         2. Compensation

         Plaintiffs allege that “[TBS] and/or CNN maintains a pattern and practice of paying African-American employees less than similarly-situated Caucasian employees.” (Compl. ¶ 39). They allege that TBS and/or CNN consider a “variety of factors” in determining employee compensation, “including the employee's pay grade, the employee's position within the salary range of that grade, and the employee's score.” (Compl. ¶ 38). They claim Defendants' compensation system allows employees in the same “job grade”[7] to be paid differently, and allows employees in lower job grades to be paid more than employees in higher job grades. (Compl. ¶ 40). Plaintiffs claim that this approach permits “unduly discretionary decisions, resulting in unequal compensation” for African-American employees. (Compl. ¶¶ 26, 38). Plaintiffs rely on the HR Report, which shows that, from 2010 to the first quarter of 2013, employees of color were paid less than the average employee in TBS's Sports, Finance & Accounting, and Legal divisions. ([1.2] at 2-3, 7, 10; Compl. ¶¶ 39, 44). Plaintiffs also allege that white employees, but not an African-American employee, received a bonus for their contribution to a $20 million work project. (Compl. ¶ 29). After the project, the African-American employee was passed over for promotion in favor of “her Caucasian counterpart.” (Compl. ¶ 29).

         3. Promotions

         Plaintiffs allege that, under Turner and/or CNN's “policies and practices, ” some positions are not posted publicly and are filled through management nominations or other closed forms of “sourcing.” (Compl. ¶¶ 26, 52). Supervisors are allowed to “essentially handpick candidates through word of mouth for available positions and make promotion decisions on the basis of subjective criteria.” (Compl. ¶¶ 26, 45). Plaintiffs claim this “prevents qualified African-Americans from competing equally for positions.” (Compl. ¶ 45).

         Where a vacancy is posted, Plaintiffs allege that Turner and/or CNN use a “targeted selection procedure” and that this discriminates against African-Americans. (Compl. ¶¶ 48, 52). Under this procedure, supervisors conduct “multiple one-on-one interviews” with candidates, ask them “scripted questions, ” and rate them on “objective criteria” known as “preferred qualifications.” (Compl. ¶¶ 48-51). Plaintiffs allege that these “preferred qualifications, ” which are not defined in the Complaint, “mask the prejudicial preference” of the supervisors and that supervisors “essentially are allowed to pre-select candidates before positions are posted.” (Compl. ¶¶ 48, 50-51; see Compl. ¶ 61 (“[A] formal interview process may be a sham to disguise the fact that a candidate has been pre-selected.”)). Plaintiffs allege that “Defendants” promoted a white candidate, who “met some of the preferred qualifications, ” to a “Chief Human Resource position, ” even though an African-American applicant had worked for Defendants longer, had undergraduate, M.B.A. and Ph.D. degrees, and had previously supervised the white candidate. (Compl. ¶ 5).

         Plaintiffs rely on the HR Report, which shows that, from 2010 to the first quarter of 2013, employees of color had lower promotion rates than the average employee in TBS's News, Legal, Public Relations, and Media divisions. ([1.2] at 1, 7-9). The HR Report also shows that employees of color were underrepresented in Manager, Director, Vice President (“VP”) and Senior Vice President (“SVP”) positions (together, “Senior Positions”) in TBS's News, Finance & Accounting, AYAKAM, Legal, and Strategy divisions, compared to the total number of employees of color in those divisions. ([1.2]; Compl. ¶¶ 46-47). Employees of color generally were underrepresented in Senior Positions in TBS's Sports, Entertainment, International, Public Relations, Media, and Research divisions, although they were adequately represented or overrepresented in at least one Senior Position in each division. ([1.2]). Plaintiffs claim that senior African-American employees are concentrated in divisions that are less influential and less profitable than others. (Compl. ¶ 5).

         Plaintiffs allege that white employees often “skip one or two position levels when promoted” while African-American employees “are simply promoted to the lowest next level.” (Compl. ¶ 5). Plaintiffs further allege that, unlike white employees, African-American employees often are required, without a promotion or a pay increase, to assume the responsibilities of more senior positions. (Compl. ¶ 5).

         4. Involuntary Terminations

         Plaintiffs allege that “African-American employees at [TBS] and CNN are involuntarily terminated at a much higher rate than Caucasian employees.” (Compl. ¶ 5). Plaintiffs again rely on the HR Report, which shows that, from 2010 to the first quarter of 2013, employees of color were terminated at a higher rate than the average employee in TBS's Sports, Finance & Accounting, and AYAKAM divisions. ([1.2] at 2-4).[8]

         D. Procedural History

         On December 6, 2016, Plaintiffs filed their Complaint [1], asserting discrimination claims on behalf of themselves and the following putative class:

All African-American persons employed by Defendants in salaried positions and mid-level managerial positions (specifically, managerial positions inferior to the Director, Vice President, Senior Vice President positions) in the United States at any time from April of 1997, to the present, who are subject to Defendants' employment and human resources policies and practices, including, but not limited to, current or former salaried employees of Turner Broadcasting Systems, including Turner's subsidiaries, Time Warner, Inc. and Turner Services, Inc., and who have been, continue to be, or may in the future be, adversely affected by Defendants' racially discriminatory employment policies and practices (“the Class”).

(Compl. ¶ 17). Count 1 asserts that, in violation of 42 U.S.C. § 1981, Defendants engaged in a “pattern and practice” of intentional race discrimination against Plaintiffs and the Class by denying them equal treatment in promotions, compensation, performance evaluations, and the “terms and conditions of employment.” (Compl. ¶ 75). Count 2 asserts that Defendants intentionally discriminated against Plaintiffs, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), by (1) declining to promote Colbert to Senior Manager until August 2016, (2) paying Plaintiffs less than similarly situated white employees, (3) denying Plaintiffs “equal terms and conditions of employment, ” and (4) retaliating against Henley for the discrimination complaint made to White. (Compl. ¶ 78). Count 3 asserts that Defendants' “policies and practices” on compensation, promotions, and performance evaluations disparately impact African-American employees, in violation of Title VII. (Compl. ¶¶ 80-81).

         On February 7, 2017, Defendants filed their Motion to Dismiss Plaintiffs' Complaint. On March 23, 2017, Plaintiffs filed their Motion to Amend, seeking leave to amend their Complaint to “clarify” their allegations and assert “new facts.” ([27] at 2). Defendants oppose Plaintiffs' Motion to Amend on the grounds that the proposed Amended Complaint [27.1] (“Proposed Amended Complaint”) does not state viable claims and an amendment would be futile. ([33]).[9] On May 1, 2017, Plaintiffs requested leave to file a surreply in opposition to Defendants' Motion to Dismiss. ([34]).


         Plaintiffs seek leave to file a surreply in opposition to Defendants' Motion to Dismiss. “The Court normally does not permit sur-replies.” Maid of the Mist Corp. v. Alcatraz Media, LLC, No. 1:09-cv-1543, 2009 WL 10670645, at *2 n.4 (N.D.Ga. Sept. 3, 2009). “Neither the Federal Rules of Civil Procedure nor this Court's Local Rules authorize the filing of surreplies as a matter of right or in the ordinary course of litigation.” Willoughby v. Youth Villages, Inc., 219 F.Supp.3d 1263, 1273 n.23 (N.D.Ga. 2016). “Such filings will typically be accepted by the Court only in unusual circumstances, such as where a movant raises new arguments or facts in a reply brief, or where a party wishes to inform the Court of a new decision or rule implicating the motion under review.” Roelle v. Cobb Cty. Sch. Dist., No. 1:13-cv-3045, 2014 WL 4457235, at *9 (N.D.Ga. Sept. 10, 2014). “[T]o allow such surreplies as a regular practice would put the court in the position of refereeing an endless volley of briefs.” Fedrick v. Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1197 (N.D.Ga. 2005).

         Plaintiffs seek to file a surreply “to correct and address . . . false and misleading representations” in Defendants' reply brief, and to respond to arguments allegedly presented for the first time in Defendants' reply. ([34] at 2). Plaintiffs' motion does not specifically identify Defendants' new arguments and “false and misleading representations.” Defendants' reply, however, squarely responds to the arguments in Plaintiffs' response brief, and does not advance new arguments. See Roelle, 2014 WL 4457235, at *9 (“If the new arguments raised in a reply brief directly address arguments raised in the non-movant's response, no surreply is warranted.”). Plaintiffs have not identified “unusual circumstances” in this case, id., and they “fail[] to demonstrate that a particular argument or representation made by [Defendants] in [their] reply brief[] warrants the filing of a surreply, ” Fedrick, 366 F.Supp.2d at 1197-98. Plaintiffs' Surreply Motion is denied.[10]


         A. Legal Standard

         On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must “assume that the factual allegations in the complaint are true and give the plaintiff[] the benefit of reasonable factual inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010). Although reasonable inferences are made in the plaintiff's favor, “‘unwarranted deductions of fact' are not admitted as true.” Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (11th Cir. 1996)). The Court is not required to accept, as true, conclusory allegations or legal conclusions. See Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (construing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); see Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1263 (11th Cir. 2004) (“[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” (quoting Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (internal quotation marks omitted))).

         “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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere “labels and conclusions” are insufficient. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires more than the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290 (quoting Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] [plaintiff's] claims across the line from conceivable to plausible.” Id. at 1289 (quoting Twombly, 550 U.S. at 570).

         B. Plaintiffs' Complaint

         The Court begins its analysis of Plaintiffs' Complaint with some preliminary observations. The Complaint is poorly drafted, difficult to follow, and unclear. It is fraught with conclusory claims, unsupported by factual allegations sufficient to support the inferences claimed by Plaintiffs. It wholesale ignores the plausibility required by Iqbal. This conclusion is supported by the Complaint itself. Plaintiffs refer generally to “[TBS] and/or CNN, ” without specifying which allegations refer to which Defendant, and the Complaint does not offer any specific allegations against Defendants Time Warner and TS. The Complaint also is littered with conclusory assertions, rank speculation, confusing statements, and generalized allegations that lack factual support. For example:

. Plaintiffs rely heavily on “Turner and/or CNN's Human Resources Diversity Trends Report, ” claiming-without explanation and with an eye toward sensationalism-that its “stark statistics can only be attributed to” discrimination. (Compl. ¶¶ 4-5 (emphasis added); see also Compl. ¶ 33 (“There is no objective factor other than race that c xplain th[e] disparity” in employee performance evaluations); Compl. ¶ 3 (“There is no factor (such as job grade, experience, or similar factors) that could explain this race-based difference in [performance] scores”)). Plaintiffs do not clearly identify the particular Defendant to which the statistics relate, and, as explained later in this Order, there are several non-discriminatory factors that could explain the statistics in the HR Report.
. The Complaint alleges, without any explanation or elaboration, that Cartoon Network “employed over twenty-five (25) African-Americans who never received the opportunity to matriculate to permanent status.” (Compl. ¶ 60).
. Although the body of the Complaint alleges, in a single sentence, that Henley “was discriminated against and mistreated in the workforce based on . . . sex and pregnancy, ” none of the counts asserted in the Complaint refer to sex- or pregnancy-based discrimination. (Compl. ¶ 9).
. Plaintiffs baldly assert that Colbert was “required to work twice as hard as his Caucasian counterparts, ” but later allege that African-Americans are required to “labor three times as long as Caucasians.” (Compl. ¶¶ 42, 46).
. The Complaint alleges, without any factual support, that “African-Americans in senior positions are concentrated in less powerful and non-revenue-generating areas.” (Compl. ¶ 5).
. The Complaint alleges the speculative conclusion that Defendants' “formal interview process may be a sham to disguise the fact that a candidate has been pre-selected.” ...

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