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Barry v. Soash

United States District Court, M.D. Georgia, Albany Division

February 5, 2018




         Before the Court is Defendants' Motion to Dismiss. Doc. 6. For the reasons stated below, Defendants' Motion is GRANTED in part and DENIED in part.


         Plaintiff 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. 1-1.

         As 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.

         Plaintiff 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.


         Rule 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).

         “‘Pro 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. 2008).

         Generally, 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.


         I. Claims against individual Defendants Soash and Wilcox

         Defendants 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.

         Plaintiff's 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). ...

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