United States District Court, S.D. Georgia, Augusta Division
RANDELL HALL, CHIEF JUDGE
employment discrimination case arises from Plaintiff Sondra
Comerinsky's employment with Defendant Augusta Coating
and Manufacturing, LLC ("ACM"). Before the Court is
Defendants ACM and Bob Rogers' motion to dismiss for
failure to state a claim. For the reasons set forth below,
Defendants' motion to dismiss is GRANTED IN PART
AND DENIED IN PART.
began her employment with ACM in September 2015 as a
Purchasing Assistant. (Am. Compl., Doc. 20, ¶ 10.)
Plaintiff's supervisor was Purchasing Manager Defendant
Bob Rogers, who allegedly harassed Plaintiff based on her
gender. (See id. ¶¶ 11-36.) Despite
multiple attempts to report Rogers to ACM's Human
Resources ("HR") department, Plaintiff alleges
nothing was done to prevent further harassment, which
eventually led Plaintiff to quit her job in the summer of
2018. (See id. ¶¶ 17-18, 21-23, 27-29,
alleges that "almost immediately" after the start
of her employment Rogers "began verbally abusing
her." (Id. SI 11.) He often called Plaintiff an
"'ignorant, stupid Yankee, '" a"
dumbass, '" "''stupid, '" or
he would say that she was "'slow.'"
(Id. ¶¶ 11, 14-15, 19.) These comments
were made on a "daily basis." (Id.
¶¶ 15, 19, 31.) Further, Rogers' insults would
normally occur during outbursts where he was
"screaming" at Plaintiff about her work performance
or other perceived problems. (Id. ¶¶ 11,
also alleges Rogers made numerous discriminatory comments
about women. Rogers told Plaintiff that "he liked it
back when women did what they were told without
question." (Id. ¶ 17.) After Plaintiff was
in a car accident that caused a back injury, Rogers made rude
comments to ACM vendors about Plaintiff including
“'she killed her last brain cell so she's now
slow if you know what I mean. Make sure if you see her
driving to get off the road!'" (Id; ¶ 14.)
Next, Rogers said to Plaintiff "'I thought you women
were supposed to be able to multitask at least 100 things at
a time - what is your problem, dumbass?'"
(Id. ¶ 15.)
Rogers became physical with Plaintiff during his outbursts.
In October 2016, Rogers was upset with Plaintiff about a
purchase order. (Id. ¶ 16.) When Plaintiff
tried to hand Rogers a copy of the purchase order, he slapped
it out of her hand leaving scratches and bruises.
(Id.) In January 2017, Rogers demanded Plaintiff
print a purchase order that he accused her of making a
mistake on. (Id. ¶ 20.) When Plaintiff tried to
give the order to Rogers, he slapped the document from her
hands causing scratches and bruises. (Id.) In March
2017, Plaintiff and ACM's QA Manager were discussing an
issue on the production floor. (Id. ¶¶
24-25.) During that conversation, Rogers came behind
Plaintiff, grabbed her by the arm, and pulled her away.
(Id. ¶ 25.) The QA Manager intervened by
stepping between Plaintiff and Rogers and instructing
Plaintiff to return to her office. (Id.) As
Plaintiff walked away, Rogers began "screaming"
that he was "'not done with her.'"
(Id.) This incident left a bruise on Plaintiff's
arm that she alleges took nearly two months to heal.
details two other similar incidents. First, in December 2017,
Rogers began yelling at Plaintiff about a customer order.
(Id. ¶ 30.) While Plaintiff discussed the issue
with another employee over the phone, Rogers told Plaintiff
to ”'get off the fucking phone now.'"
(Id.) Even when Plaintiff told Rogers she resolved
the issue he said ”'I don't give a
fuck'" and "came at Plaintiff with an open hand
as if he was going to hit her." (Id.) A few
months prior, Rogers walked into Plaintiff's office after
working on the production floor. (Id. ¶ 27.) He
stated, “'Sandy it's hot out on the plant floor
and I'm all sweaty. Get over here and feel me.'"
(Id.) When Plaintiff refused, Rogers insisted,
"'I said get up and put your hand up the back of my
shirt and feel how sweaty I am!'" (Id.
¶ 27.) Plaintiff alleges this was not an isolated
incident. (Id. ¶ 28.)
further alleges that Rogers withheld breaks from her, forced
her to work off the clock, and demanded she run personal
errands for him. (Id. ¶¶ 12, 19, 32-33.)
On March 6, 2018, Rogers forced Plaintiff to end her lunch
break early to call a customer. (Id. ¶ 32.)
When Plaintiff attempted to clock back in, Rogers told her
"I don't give you permission to clock in early. You
fucked this up. You do as I said now!" (Id.)
Thereafter, Rogers "routinely" forced Plaintiff to
work through her lunch break, but still required her to clock
out for an hour. (Id. ¶ 33.) Finally, Plaintiff
contends Rogers commanded her to carry heavy boxes despite a
documented back injury. (Id. ¶ 28.) When
Plaintiff protested, Rogers insisted she move the boxes
herself and not receive help from anyone else. (Id.)
Plaintiff repeatedly alleges that Rogers did not insult,
ridicule, withhold breaks, disregard medical restrictions, or
become physical with any male employees. (Id.
¶¶ 11-12, 14-16, 19-20, 30, 33.)
made multiple complaints to ACM's HR Manager
Sarahabout Rogers' conduct. After both
incidents where Rogers slapped documents from Plaintiff's
hand, she complained to the HR Manager and showed her
injuries. (Id. ¶¶ 17, 20-21.) Although the
HR Manager promised to talk with Rogers, she never did, and
often told Plaintiff "'that's Bob being
Bob.'" (Id. ¶ 21, 28.) When
Plaintiff informed the HR Manager about Rogers' request
that Plaintiff rub his sweaty back, the HR Manager laughed
and dismissed the complaint. (Id. ¶ 28.) In
late 2017, Plaintiff twice approached ACM's Operations
Manager Mike Welsh with complaints about Rogers' conduct;
both times Welsh never took any action. (Id.
¶¶ 27, 29.)
spring of 2018, Plaintiff's boyfriend contacted ACM
management about Rogers' behavior and sent a text message
directly to Rogers stating: ”'I just want to let
you know that if you raise your voice with her one more time
you will have the job to do by yourself. She is not going
[sic] continue to be abused at work by you.'"
(Id. ¶ 34.) The next day, Plaintiff was told
that her boyfriend should not get involved in work matters
and she should resolve her issues directly with Rogers
instead of involving other managers. (Id. ¶
35.) The HR Manager also called a meeting with Plaintiff and
Rogers. (Id. ¶ 36.) At this meeting, the HR
Manager characterized the text message as "a direct
threat on Rogers' life" and issued a written warning
to Plaintiff. (Id.) Further, Rogers told Plaintiff
she needed to raise any problems solely with him; the HR
Manager agreed with Rogers' statement. (Id.)
Shortly thereafter, Plaintiff quit her job and filed a charge
with the Equal Employment Opportunity Commission
PEEOC"). (Id. ¶¶ 37-39.)
brings federal and state law claims against Rogers and ACM.
Plaintiff alleges a claim for hostile work environment and
retaliation under Title VII. (See id. ¶¶
67-75.) Her state law claims include battery against Rogers;
negligent retention and supervision, ratification, gross
negligence and negligence per se against ACM; and
intentional infliction of emotional distress, punitive
damages, and attorney's fees against both Defendants.
(See id. ¶¶ 40-66.)
already amended her complaint as a matter of course in
response to Defendants' first motion to
dismiss. Currently before the Court is
Defendants' renewed motion to dismiss Plaintiff's
Amended Complaint under Federal Rule of Civil Procedure
12(b)(6). (Doc. 23.)
motion to dismiss under Rule 12(b)(6) does not test whether
the plaintiff will ultimately prevail on the merits of the
case. Rather, it tests the legal sufficiency of the
complaint. Swierkiewicz v. Sorema N.A., 534 U.S.
506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S.
232, 236 (1974)). Therefore, the court must accept as true
all facts alleged in the complaint and construe all
reasonable inferences in the light most favorable to the
plaintiff. See Hoffman-Puqh v. Ramsey, 312 F.3d
1222, 1225 (11th Cir. 2002).
court, however, need not accept the complaint's legal
conclusions as true, only its well-pled facts. Ashcroft
v. Iqbal, 556 U.S. 662 (2009). A complaint also must
"contain sufficient factual matter, accepted as true,
'to state a claim to relief that is plausible on its
face.'" Id. at 678 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
plaintiff is required to plead "factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Id. Although there is no probability requirement at
the pleading stage, "something beyond . . . mere
possibility . . . must be alleged." Twombly,
550 U.S. at 556-57 (citing Durma Pharm., Inc. v.
Broudo, 544 U.S. 336, 347 (2005)).
motion to dismiss challenges each of Plaintiff's claims
in the Amended Complaint. First, Defendants seek dismissal of
Plaintiff's Title VII claims against Rogers. Second,
Defendants argue Plaintiff has not alleged facts to satisfy
the necessary elements for her Title VII claims. Third,
Defendants move to dismiss all the state law claims based on
jurisdiction and statute of limitations. Finally, Defendants
argue Plaintiff has not alleged sufficient facts to state a
claim for negligence per se.
Individual Liability Under Title VII
Amended Complaint does not clearly state whether her Title
VII claims are made against ACM, Rogers, or both, nor does
she state whether Rogers is sued in his individual capacity
or as an agent of ACM. Defendants raise this issue in their
motion to dismiss and request the Court dismiss all Title VII
claims against Rogers. Plaintiff's response brief makes
no attempt to address this argument or clarify the
ambiguities of the Amended Complaint.
relief granted under Title VII is against the employer, not
individual employees whose actions would constitute a
violation of the Act." Busby v. City of
Orlando, 931 F.2d 764, 772 (11th Cir. 1991).
Consequently, "the only proper individual defendants in
a Title VII action would be supervisory employees in their
capacity as agents of the employer." Hinson v.
Clinch Cty. Bd. of Educ., 231 F.3d 821, 827 (11th Cir.
2000). Accordingly, to the extent Plaintiff brings Title VII
claims against Rogers in his individual capacity, those
claims are dismissed.