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Comerinsky v. Augusta Coating and Manufacturing, LLC

United States District Court, S.D. Georgia, Augusta Division

September 3, 2019

SONDRA COMERINSKY, Plaintiff,
v.
AUGUSTA COATING AND MANUFACTURING, LLC and BOB ROGERS, Defendants.

          ORDER

          J. RANDELL HALL, CHIEF JUDGE

         This 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.

         I. BACKGROUND

         Plaintiff 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, 37.)

         Plaintiff 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, 30-31.)

         Plaintiff 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.)

         Eventually, 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. (Id.)

         Plaintiff 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.)

         Plaintiff 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.[1] (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.)

         Plaintiff made multiple complaints to ACM's HR Manager Sarah[2]about 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.'"[3] (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.)

         In the 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.)

         Plaintiff brings federal and state law claims against Rogers and ACM. Plaintiff alleges a claim for hostile work environment and retaliation under Title VII.[4] (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.)

         Plaintiff already amended her complaint as a matter of course in response to Defendants' first motion to dismiss.[5] 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.)

         II. LEGAL STANDARD

         A 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).

         The 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)).

         III. DISCUSSION

         Defendants' 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.

         A. Individual Liability Under Title VII

         Plaintiff's 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.

         "The 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.

         B. Hostile ...


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