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Jones v. Nippon Cargo Airlines Co., Ltd.

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

January 12, 2018

FRIEDA T. JONES, Plaintiff,
v.
NIPPON CARGO AIRLINES CO., LTD., and GRANE DISTRIBUTION SERVICES, LLC, Defendants.

          NON-FINAL REPORT AND RECOMMENDATION

          JOHN K. LARKINS III United States Magistrate Judge

         This employment discrimination case is presently before the Court on Defendant Grane Distribution Services, LLC's motion to dismiss the claims asserted against it in Plaintiff Frieda T Jones's Amended Complaint [Doc. 25], and Jones's own motion for leave to file a second amended complaint [Doc. 32.] For the reasons that follow, I RECOMMEND that Grane's motion to dismiss be DENIED, and that Jones's motion for leave to amend be GRANTED IN PART AND DENIED IN PART. Jones's proposed amended claims against Defendants for discrimination, retaliation, negligent supervision and retention, and quantum meruit/unjust enrichment should be allowed to proceed; however, leave to assert claims for assault and battery should be denied because the claims as proposed would be futile.

         I. BACKGROUND

         A. Original Complaint

         Jones, represented by counsel, originally filed this action in May 2017 against DAL Global Services, LLC (“DAL”); Nippon Cargo Airlines Co., Ltd. (“Nippon”); Grane Distribution Services, LLC (“Grane”); and Manabu Masuda, an alleged employee of Grane. [Compl., Doc. 1.] In her original complaint, Jones asserted claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”); the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”); and state law. [Id.] In explaining her relationship with Defendants, Jones alleged that in June 2015, she was employed by a division of DAL providing temporary staffing services and placed with Grane, a fleet truck operator, which in turn was part of Nippon's distribution and supply chain; she explained that while placed with Grane, she worked exclusively on the distribution of Nippon goods, that Grane and Nippon jointly directed and controlled all aspects of her employment, and that she was supervised by Masuda, a Grane employee. [Id. ¶¶ 17-34.]

         Jones alleged that she worked in an office suite with Masuda, an employee of Grane; Joyce Abercrombie, an employee of Nippon; Joseph Kpade, a joint employee of Grane and Nippon; and Damon Townsend, a Grane employee. [Compl. ¶ 34.] She asserted that between August 2015 and October 2015, Kpade subjected her to sexually offensive comments, conduct, and touching, including touching his penis, requesting fellatio, grabbing her buttocks, and groping her breasts. [Id. ¶¶ 49-51, 58-61.] Despite witnesses' presence, her own complaints to supervisors (including both Masuda and Abercrombie), Kpade's known history has a harasser, and her requests for transfer, Jones alleged that no action was taken; and that instead, Kpade's treatment of her worsened, and upon Kpade's demand that Jones be fired, Masuda sent her home without pay. [Id. ¶¶ 52-58, 62-69.]

         After Jones's suspension and an investigation, Kpade was discharged, and Jones was eventually allowed to return to work (though apparently not paid during her leave). [Compl. ¶¶ 68-70.] Upon her return, however, Kpade periodically appeared at her job site (and had friends and family there who supported him and/or antagonized Jones), and despite her requests for transfer and complaints to supervisors about feeling threatened, no additional action was taken to protect her from Kpade. [Id. ¶¶ 71-74.] As an apparent accommodation, Jones was allowed to report to work any time before 10:00 AM rather than strictly at 8:30 AM. [Id. ¶ 75.]

         After allegedly retaliatory comments were made to Jones or about her to others (either in her presence or otherwise), she filed two charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on March 4, 2016, (1) which specifically named DAL and Nippon, (2) the later of which was addressed to “Nippon Cargo Airlines, Ltd. C/O Grane Distribution, ” and (3) which alleged sexual harassment by Kpade and retaliation by the companies following complaints to Abercrombie and Masuda, among others. [Compl. ¶¶ 77-79, Ex. A.] She asserted that after filing the charges, she was terminated at the end of March 2016, after which time she amended her charges with the EEOC to include her termination. [Id. ¶¶ 80-85, Ex. B.] She received her notices of right to sue from the EEOC around February 2, 2017. [Id. ¶ 86, Ex. C.]

         Based upon the described conduct above, Jones alleged hostile work environment discrimination and retaliation in violation of Title VII, [Compl. 88-99], as well as state law tort claims relating to Kpade's conduct and his supervision by DAL, Grane, and Nippon [id. ¶¶ 100-111].

         Additionally, Jones asserted that she was not compensated for all the hours she worked, in violation of the FLSA. In support, she stated that while working at Grane, her “hours worked were continuously adjusted [down] by Defendant Masuda from October 2015 until her termination in March 2016 despite working a full forty (40) hours per week.” [Compl. ¶¶ 37, 47, 100-103.] She further alleged that when she confronted Masuda about the problem, he “claimed he had watched her on camera and stated she was not always working, ” but that she was never provided with any evidence of his assertion. [Id. ¶ 48.]

         B. First Amended Complaint and Grane's Motion to Dismiss

          Following waiver of service [Docs. 5-7], DAL and Nippon[1] moved to dismiss certain of Jones's claims in late June and July 2017 [Doc. 8, 14], and Jones thereafter stipulated to the dismissal of DAL [Doc. 18]. On July 31, 2017, Jones filed her Amended Complaint [Doc. 19], and Nippon soon thereafter withdrew its motion to dismiss [Doc. 20] and filed its answer [Doc. 21].

         In her Amended Complaint, [2] Jones asserts largely the same theories for relief, though only against Nippon and Grane. [Am. Compl. Doc. 19.] She clarifies that DAL assigned her to work at Grane, which was an outsourced fleet truck operator for Nippon in Atlanta, Georgia; and that Grane and Nippon shared an office and facility in Atlanta, at which Jones worked. [Id. ¶¶ 13, 19-23.] According to Jones, Nippon also maintained employees at Grane's facility, including Kpade, and that both Grane and Nippon were her and Kpade's joint employers based upon their supervision and control. [Id. ¶¶ 6, 13-15, 23.] Plaintiff alleges that she was supervised by both Abercrombie (with Nippon) and Masuda (with Grane). [Id. ¶¶ 16-18.]

         Jones also reiterates her allegations regarding Kpade's purported offensive and harassing comments, conduct, and touching [Am. Compl. ¶¶ 38-50]; her complaints to Abercrombie and Masuda [id. ¶¶ 41-44]; the confrontation leading to her suspension, the investigation, and Kpade's separation [id. ¶¶ 53-65]; and the continued problems with Kpade's presence at work after the termination of his employment [id. ¶¶ 66-67].

         Jones then further clarifies the alleged circumstances surrounding her own separation. Following Kpade's termination, Abercrombie allegedly began - presumably unfairly and/or without basis - criticizing her performance and work, complaining, among other problems, that Jones was not completing her work in a timely manner. [Am. Compl. ¶ 72.] Jones asserts that she complained in February 2016 and sought a transfer, but no transfer, action, or investigation took place; and that she was told only that she did not need to transfer because Kpade had been fired. [Id. ¶ 71.] Finally, Jones alleges that, on March 20, 2016, she learned that Masuda had complained to DAL that she had been not coming into work on time (despite her prior allegation that she was allowed flexibility in her arrival time as an accommodation). [Id. ¶ 77.] As a consequence of Abercrombie and Masuda's retaliatory complaints/criticism, Jones asserts that, on or around March 30, 2016, her employment was terminated. [Id. ¶ 81.]

         Jones reasserts claims for hostile work environment discrimination and retaliation under Title VII against Nippon and Grane [Am. Compl. ¶¶ 86-97], as well as her claim for unpaid compensation under the FLSA against Grane [id. ¶¶ 33-37, 103-06]. She also asserts claims for negligent supervision and negligent retention against Nippon and Grane, based upon her allegations that they had prior knowledge of Kpade's history of workplace harassment and assault/battery, ignored Jones's complaints, and failed to protect her from Kpade. [Id. ¶¶ 98-102.]

         On August 18, 2017, Grane moved to dismiss all of the claims asserted against it. With regard to the Jones's federal claims, Grane argues that (1) she failed to exhaust her administrative remedies against it under Title VII because she never named Grane in any EEOC charge of discrimination (and because several retaliatory acts were not included in any EEOC charge); (2) she did not allege sufficient factual allegations to plausibly support a hostile work environment claim under Title VII; (3) she did not allege sufficient facts showing she engaged in protected activity to support a retaliation claim under Title VII; and (4) she failed to allege that she was paid less than minimum wage or deprived of any overtime pay in violation of the FLSA, and instead only alleged a “gap pay” claim that is not cognizable under the FLSA. [Doc. 25.] Grane also argues that because Jones's federal law claims should be dismissed, the court should decline jurisdiction over her state law claims, but that in any event, the negligent supervision and retention claims are subject to dismissal for lack of any underlying state law tort claim. [Id.]

         C. Proposed Second Amended Complaint

         On September 8, 2017, Jones moved to amend her complaint a second time. [Doc. 32.] Her proposed Second Amended Complaint seeks (1) to add allegations regarding the completion of an intake questionnaire with the EEOC (and attaches the same) and the preparation of her EEOC charges by the EEOC, in order to address Grane's exhaustion arguments; (2) to reassert a claim for assault against Nippon and Grane based upon their alleged ratification of Kpade's actions; and (3) to replace her claims for unpaid compensation under the FLSA with claims for quantum meriut and/or unjust enrichment. [Id; see also Doc. 32-1 (proposed Sec. Am. Compl.).]

         With regard to her proposed exhaustion allegations in particular, Jones seeks to allege the following additional facts:

. “Plaintiff filled out an Intake Questionnaire identifying her employer as ‘Nippon Cargo Airlines/Grane Distribution' and listed her employers' address as the 10 Southwoods Parkway location . . . [the] shared business address of both Nippon and Grane.”
. “Plaintiff indicated that Masuda - an employee of Defendant Grane -was her immediate supervisor, and stated that she had complained to Masuda and Abercrombie - an employee of Defendant Nippon -regarding sexual harassment but nothing had been done.”

[Sec. Am. Compl. ¶¶ 70-71.] She also attaches the intake questionnaire she completed with the EEOC, showing that she named Nippon and Grane as her employers (in the questionnaire). [Id. ¶ 72, Ex. A.]

         Grane and Nippon oppose Jones's motion to amend, arguing that the proposed amendments are futile. [Docs. 38, 39, 40.] Grane reiterates its arguments that Jones's Title VII claims against it fail for lack of exhaustion (despite the intake questionnaire) and because it includes insufficient factual allegations to establish a plausible claim for relief; that jurisdiction over her state law claims should be declined based upon the futility of her federal claims; and that her negligent supervision and retention claims fail for lack of an underlying tort. [Docs. 38, 39.] Both Grane and Nippon argue further that the proposed claims for assault and battery - previously asserted in the original Complaint and withdrawn in the Amended Complaint - are futile because the proposed Second Amended Complaint does not include any basis for finding Grane or Nippon liable for Kpade's actions. [Docs. 38, 39, 40.]

         Jones has not responded to Grane's argument for the dismissal of her FLSA claims [see Doc. 33], and has not filed a reply in support of her motion to amend.

         II. LEGAL ANALYSIS

         A. Jones's FLSA Claim

         As an initial matter, because Grane's motion to dismiss is based upon the allegations as set forth in the Amended Complaint, because the proposed Second Amended Complaint removes the challenged FLSA cause(s) of action, and because Grane and Nippon does not appear to oppose Jones's motion for leave to amend in this regard, the motion for leave to amend as it pertains to the removal of Jones's FLSA claim(s) should be granted, and the motion to dismiss should be denied as moot with regard to the FLSA claim. See Lowery v. Ala. Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007); Malowney v. Fed. Collection Deposit Grp, 193 F.3d 1342, 1345 n.1 (11th Cir. 1999); see also Fed. R. Civ. P. 15(a)(2) (“a party may amend its pleading [] with the opposing party's written consent”).[3]

         B. Standard of Review

          In evaluating a Rule 12(b)(6) motion to dismiss, a court must determine whether a complaint contains “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)). While it need not provide “detailed factual allegations, ” a complaint must provide factual allegations sufficient to plausibly set forth a plaintiff's entitlement to relief. Twombly, 550 U.S. at 555. Providing only “labels and conclusions” is insufficient, “and a formulaic recitation of the elements of a cause of action will not do.” Id. The court is not required to accept as true legal conclusions couched as factual statements, Iqbal, 556 U.S. at 678, and “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 shown - that the pleader is entitled to relief, ” as required by Rule 8(a)(2). Id. at 679 (internal quotation marks, bracket, and citation omitted). Furthermore, if assuming the truth of the factual allegations of the amended complaint, there is a dispositive legal issue that precludes relief or if it is based on a meritless legal theory, dismissal is warranted. Neitzke v. Williams, 490 U.S. 319, 326 (1989); Brown v. Crawford Cty., 960 F.2d 1002, 1009-10 (11th Cir. 1992).

         In evaluating a motion to amend when, as here, the time for amending as a matter of course has expired, under Rule 15(a) leave to amend need not be granted if there is undue prejudice to the opposing party, undue delay in bringing the motion, bad faith on the part of the movant, futility of the motion, or a repeated failure to cure deficiencies by previous amendments. Foman v. Davis, 371 U.S. 178, 182 (1962); Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape, 556 F.3d 1232, 1241 (11th Cir. 2009). A “proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 777 n.10 (11th Cir. 2000); see also Spanish Broad. Sys. of Fla., Inc. v. Clear Channel Commnc'ns, Inc., 376 F.3d 1065, 1077 (11th Cir. 2004) (amendment is considered futile if a “cause of action does not state a claim upon which relief can be granted”). Grane and Nippon both oppose amendment on the basis of futility, and as a result, the standard elucidated above applies to the evaluation of ...


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