United States District Court, M.D. Georgia, Albany Division
J. ABRAMS, JUDGE
the Court is Defendants' Motion to Dismiss. Doc. 6. For
the reasons stated below, Defendants' Motion is
GRANTED in part and DENIED in part.
Timothy Scott Barry initiated this action pro se in
state court against his former employer, Defendant Raycom
Media Inc. (“WALB”), WALB's News Director,
Defendant Bari Soash, and WALB's Vice President and
General Manager, Defendant Jim Wilcox, on December 2, 2016.
Docs. 1-1 & 8. On January 4, 2017, Defendants removed the
case to federal court. Id. Plaintiff's Complaint
alleges, somewhat inartfully and often in summary fashion,
that Defendants violated both the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101, et
seq., and Title VII of the Civil Rights Act
(“Title VII”), 42 U.S.C. § 2000e, et
seq., when they: (1) failed to accommodate
Plaintiff's disability; (2) retaliated against Plaintiff
for requesting an accommodation; (3) created a hostile work
environment; and (4) harassed and discriminated against
Plaintiff because of his sex. Plaintiff also alleges that
Defendants breached Plaintiff's employment contract. Doc.
factual support for these claims, Plaintiff alleges that: (1)
Plaintiff, as a person “with a documented established
history [of] mental disabilities, ” requested an
accommodation on June 19, 2015-nearly three months after the
start of his employment with WALB-for fifteen to twenty
minutes breaks “in times when [Plaintiff] [became]
stressed out;” (2) Defendants failed to provide a
reasonable accommodation to Plaintiff by requiring Plaintiff
to submit, before proceeding with the interactive process, a
health examination questionnaire- which Plaintiff refused to
submit at his own expense-twenty days after Plaintiff
submitted paperwork to Defendants showing he was disabled;
(3) Defendants did not allow Plaintiff to wear three-quarters
of his wardrobe that Plaintiff was previously allowed to wear
as a meteorologist on television even though a male employee,
Chris Zelman, and women working for Defendants were allowed
to wear similar shirts per Defendants' policy; (4)
Plaintiff was heckled and harassed by management about his
wardrobe; (5) Defendants failed to investigate
Plaintiff's report of harassment per Defendants'
policy; (6) Plaintiff was “provoked” by
Defendants' hostile work environment “to the point
it caused [Plaintiff] to be fired;” (7) Plaintiff was
fired after a conference call with Defendants, regarding
Plaintiff's request for accommodation, where Plaintiff,
“raising [his] voice, ” threatened that
Defendants were “gonna get in[to] a lawsuit, ”
interrupted Defendant Soash multiple times and
“spiral[ed] [ ] into a frenzy;” (8) Plaintiff was
fired three weeks after asking for an accommodation for a
disability; and (9) Defendants failed to either pay Plaintiff
sixty days salary or give him sixty days' notice before
his firing. Docs. 1-1 at 5-9, 23; 8-10 at 2. Plaintiff seeks
compensatory and punitive damages for his humiliation and
emotional distress, damage to his reputation, and
inconvenience; the cost of shirts he could not return;
back-pay; and a payout of his salary for the remainder of his
employment contract. Doc. 1-1 at 5, 9.
filed a charge of discrimination on October 26, 2015, which
was received by the EEOC on October 29, 2015. Doc. 6-1 at 2.
Plaintiff received a right to sue letter from the EEOC on
October 5, 2016. Doc. 8-27 at 1. Plaintiff filed this action
on December 2, 2016. Doc. 1-1. On January 11, 2017,
Defendants filed their Motion. Doc. 6. Plaintiff filed a
timely Response on January 30, 2017, and Defendants filed
their Reply on February 13, 2017. Docs. 12 & 13.
12(b)(6) requires that the complaint plead enough facts to
state a claim for relief that is plausible-not just
conceivable-on its face. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). Although a court must “take
the factual allegations in the complaint as true and construe
them in the light most favorable to the plaintiffs, ”
it is not required “to accept the labels and legal
conclusions in the complaint as true.” Edwards v.
Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010);
see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”). At bottom, “the factual allegations
in the complaint must possess enough heft to set forth a
plausible entitlement to relief.” Edwards, 602
F.3d at 1291 (punctuation omitted).
se pleadings are held to a less stringent standard than
pleadings drafted by attorneys' and are liberally
construed.” Bingham v. Thomas, 654 F.3d 1171,
1175 (11th Cir. 2011). Nevertheless, a pro se
plaintiff must still comply with the threshold requirements
of the Federal Rules of Civil Procedure. See Beckwith v.
Bellsouth Telecommunications Inc., 146 F. App'x 368,
371 (11th Cir. 2005). “Despite the leniency afforded
pro se plaintiffs, the district court does not have
license to rewrite a deficient pleading.” Osahar v.
U.S. Postal Serv., 297 F. App'x 863, 864 (11th Cir.
a district court “must convert a motion to dismiss into
a motion for summary judgment if it considers materials
outside the complaint.” Day v. Taylor, 400
F.3d 1272, 1275-76 (11th Cir. 2005) (citing Fed.R.Civ.P.
12(b)). The Eleventh Circuit has held, however, that
“the court may consider a document attached to a motion
to dismiss without converting the motion into one for summary
judgment if the attached document is (1) central to the
plaintiff's claim and (2) undisputed. In this context,
‘undisputed' means that the authenticity of the
document is not challenged.” Id. at 1276
(citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th
Cir. 2002)). Here, in addition to the Complaint and its
exhibits, the Court has considered Plaintiff's EEOC
Complaint, right to sue letter, and employment contract.
Docs. 6 & 8. These documents contain factual information
central to Plaintiff's claims-such as whether Plaintiff
has given the EEOC a chance to investigate his claims prior
to filing suit and factual details about Plaintiff's
claims. Further, the authenticity of these documents is not
in dispute. Accordingly, the Court considers these documents
without converting Defendants' Motion to Dismiss into a
motion for summary judgment.
Claims against individual Defendants Soash and
assert that the ADA and Title VII claims against Defendants
Soash and Wilcox are due to be dismissed because Soash and
Wilcox were not Plaintiff's employer. Doc. 6 at 4. Under
Eleventh Circuit precedent, “individual defendants are
not amenable to private suit” under the ADA or Title
VII. See, e.g., Albra v. Advan, Inc., 490
F.3d 826, 830 (11th Cir. 2007). Thus, Plaintiff cannot assert
a claim against Soash and Wilcox under the ADA or Title VII.
state law contract claim also fails against Soash and Wilcox.
“All corporate bodies perforce must operate through
individuals. The mere operation of corporate business does
not render one personally liable for corporate acts.”
Earnest v. Merck, 358 S.E.2d 661, 663 (Ga.Ct.App.
1987) Thus, “[u]nder Georgia law, a corporation and its
shareholders and officers are separate . . . and [an officer]
is not bound by corporate acts, even though the individual
may dictate every corporate decision.” United
States v. Fid. Capital Corp., 920 F.2d 827, 836 (11th
Cir. 1991) (citations omitted). ...