United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE
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  (“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  (“Surreply Motion”), and
Plaintiffs' Motion for Leave to Amend the Complaint to
Voluntarily Withdraw its [sic] Original Complaint 
(“Motion to Amend”).
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). 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). 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).
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). 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).
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).
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). 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).
Plaintiffs' Class-Wide Allegations
allege that Defendants have engaged in a pattern and practice
of racial discrimination in performance evaluations,
compensation, promotions, and terminations. (Compl.
¶¶ 6, 26).
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). 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). Plaintiffs claim that African-American
employees are harmed because their performance ratings impact
their compensation and promotion opportunities.
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” 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).
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).
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).
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).
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.
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).
December 6, 2016, Plaintiffs filed their Complaint ,
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).
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.” ( 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. (). On May 1, 2017, Plaintiffs
requested leave to file a surreply in opposition to
Defendants' Motion to Dismiss. ().
PLAINTIFFS' SURREPLY MOTION
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).
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. ( 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
DEFENDANTS' MOTION TO DISMISS
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
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
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.” ...