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Case 2:13-cv-01009-UNAS-CLS Document 9 Filed 07/31/13 Page 1 of 14

FILED

2013 Jul-31 PM 03:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

COURTNEY OWEN and the class
he seeks to represent,

Plaintiff,

vs.

CHARMING CHARLIE,

Defendant.

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Civil Action No. 13-S-1009-S

MEMORANDUM OPINION AND ORDER

This action arises from an attempt by Courtney Owen, a male plaintiff, to obtain

employment in a retail position with defendant Charming Charlie, a business that sells

women’s fashion accessories. Plaintiff, on behalf of himself and the class he seeks

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to represent, alleges that defendant engaged in discrimination against males “on the

basis of their sex with respect to hiring in retail sales positions” in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42

U.S.C. § 1981a. This action is before the court on defendant’s motion to dismiss

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plaintiff’s complaint under 42 U.S.C. § 2000e-5 and Federal Rule of Civil Procedure

12(b)(6) for failure to exhaust his administrative remedies. Upon consideration, this

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court will deny the motion.

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See doc. no. 1 (Complaint) ¶¶ 8-36.
Id. ¶ 50; see also id. ¶ 1.
See doc. no. 5 (Motion to Dismiss), at 1.

Case 2:13-cv-01009-UNAS-CLS Document 9 Filed 07/31/13 Page 2 of 14

I. LEGAL STANDARDS

Federal Rule of Civil Procedure 12(b)(6) permits a party to move to dismiss a

complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ.

P. 12(b)(6). That rule must be read together with Rule 8(a), which requires that a

pleading contain only a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While that pleading standard

does not require “detailed factual allegations,” Bell Atlantic Corp. v. Twombly, 544

U.S. 544, 550 (2007), it does demand “more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citations omitted).

To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that
is plausible on its face.” [Bell Atlantic Corp., 550 U.S.] at 570. A claim
has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Id., at 556. The plausibility standard
is not akin to a “probability requirement,” but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Ibid. Where a
complaint pleads facts that are “merely consistent with” a defendant’s
liability, it “stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id., at 557 (brackets omitted).

Iqbal, 556 U.S. at 678 (alteration supplied).

As always is the case in the context of ruling upon a motion to dismiss, the

district court is required to assume that

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Case 2:13-cv-01009-UNAS-CLS Document 9 Filed 07/31/13 Page 3 of 14

the facts set forth in the plaintiff’s complaint are true. See Anza [v. Ideal
Steel Supply Corp.], 547 U.S. 451, [453,] 126 S. Ct. [1991,] 1994
[(2006)] (stating that on a motion to dismiss, the court must “accept as
true the factual allegations in the amended complaint”); Marsh v. Butler
County, 268 F.3d 1014, 1023 (11th Cir. 2001) (en banc) (setting forth
the facts in the case by “[a]ccepting all well-pleaded factual allegations
(with reasonable inferences drawn favorably to Plaintiffs) in the
complaint as true”).

Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006)

(alterations supplied). Even so,

the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. [Bell Atlantic Corp., 550 U.S.] at 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (Although for the purposes of a motion to
dismiss we must take all of the factual allegations in the complaint as
true, we “are not bound to accept as true a legal conclusion couched as
a factual allegation” (internal quotation marks omitted)).

Iqbal, 556 U.S. at 678 (alteration supplied).

II. FACTS AS ALLEGED

Defendant, Charming Charlie, sells women’s fashion accessories, and operates

over 200 retail establishments throughout the United States. Plaintiff completed an

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online application on July 11, 2012, for employment as a sales associate at defendant’s

Colonial Promenade Tannehill location in Bessemer, Alabama — a store that was

scheduled to be opened on approximately September 23, 2012. He was qualified for

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Doc. no. 1 (Complaint) ¶ 9.
Id. ¶ 10.

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Case 2:13-cv-01009-UNAS-CLS Document 9 Filed 07/31/13 Page 4 of 14

the position. Plaintiff received a telephonic message from defendant’s manager,

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Shannon Wells, during the week of September 10, 2012. Ms. Wells’s message

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informed plaintiff that she had received his online application, and wanted to

interview him for the sales associate position. Ms. Wells conducted plaintiff’s

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interview on September 15, 2012.9

During the interview, Ms. Wells informed plaintiff that she rarely hired males.

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She also stated that men typically “don’t like” the company’s policy requiring all

sales associates to wear six accessories while working.
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Plaintiff told Ms. Wells that

he “did not have a problem” with that requirement.
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Ms. Wells, however, reiterated

that men typically “don’t like” the requirement, and usually “can’t do the dress code,”

or something to that effect.
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Ms. Wells stated that she “might be willing” to hire

plaintiff as a temporary employee, and that if he could follow the dress code, he

“might” get a permanent position.14

Later on the day of his interview, plaintiff received an e-mail containing an

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Id. ¶¶ 11-12.
Id. ¶ 14.
Id. ¶ 15.
Id. ¶ 16.
Doc. no. 1 (Complaint) ¶ 17.
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Id. ¶¶ 18-19.
Id. ¶ 20.
Id. ¶ 21.
Id. ¶ 22.

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Case 2:13-cv-01009-UNAS-CLS Document 9 Filed 07/31/13 Page 5 of 14

offer of employment, along with instructions for completing “onboarding”

documents.
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Plaintiff completed the necessary documentation as requested.

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Later

that week, plaintiff received a telephonic message from Ms. Wells, inviting him to

join the “set-up team” to prepare for the grand opening of the new store.17

Plaintiff returned Ms. Wells’s call and left a voice message on her cell phone,

asking when he should report for work.

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Ms. Wells did not respond to plaintiff’s

message.
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Accordingly, plaintiff attempted to contact Ms. Wells on multiple

additional occasions.
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However, his calls always went to voice mail, and the voice

mailbox eventually became full, and stopped allowing him to leave further messages.

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Plaintiff never heard back from Ms. Wells about his start date.22

Plaintiff alleges that he “was denied employment with Defendant on or around

September 23, 2012”: i.e., the approximate date when the Bessemer store was

scheduled to open.

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He filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) on October 4, 2012, which stated as follows:

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Id. ¶ 23.
Doc. no. 1 (Complaint) ¶ 24.
Id. ¶ 25.
Id. ¶ 26.
Id. ¶ 27.
Id. ¶ 28.
Id.
Doc. no. 1 (Complaint) ¶ 29.
Id. ¶ 30; see also doc. no. 5-1 (EEOC Charges), at 6.

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Case 2:13-cv-01009-UNAS-CLS Document 9 Filed 07/31/13 Page 6 of 14

I am a male. On July 11, 2012, I applied for a sales associate
position with [defendant]. I received an interview on September 15,
2012. During the interview, Manager Shannon Wells told me that she
rarely hires men. She said that men typically don’t like the company’s
requirement for employees to wear six to seven “accessories,” which I
perceived to be jewelry. I told Ms. Wells that I didn’t have a problem
with the requirement. Later that day, the company sent me an e-mail
offer of employment. However, despite numerous attempts to follow-up
with Ms. Wells regarding the job offer, she has not returned my phone
calls. I believe that Ms. Wells intended not to return my calls in an
attempt to replace me with a female.

I believe that I was discriminated against due to my sex, in

violation of Title VII of the Civil Rights Act of 1964, as amended.24

The EEOC issued a Right to Sue letter on February 28, 2013.25

Plaintiff filed a supplemental charge of discrimination with the EEOC on March

22, 2013, stating that:

This is a supplement to my previous charge, charge no.
420-2013-00051. As noted in that charge, I was denied employment by
[defendant] on 9/23/2012 or thereafter, which would have been my
approximate start date for the sales associate position I applied for. My
original charge mentions tile company’s requirement to wear six to seven
“accessories,”·which I perceived to be jewelry. I told Ms. Wells, the
manager who interviewed me, that I did not have a problem with that
requirement. Ms. Wells, however, staled that men typically don’t like
the company’s requirement and usually “can’t do the dress code,”
referring to the accessories policy, or something to that effect. She stated
that she might be willing to hire me as a temp, and that if I could follow
the dress code, I might get a permanent position. However, after
receiving an e-mail with an offer of employment, I never heard back for
my start date. Upon information and belief, my employment would not
have begun until 9/23/2012 or thereafter, as the Bessemer store had not

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25

Id. at 2 (alteration supplied).
Id. at 4.

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Case 2:13-cv-01009-UNAS-CLS Document 9 Filed 07/31/13 Page 7 of 14

yet opened for business at the time I applied. I was denied employment
on or after 9/23/2012, as noted in the “Date(s) discrimination look place”
box in my original charge.

Upon information and belief, the accessories requirement and
other policies have a disparate impact on male applicants and employees
and intentionally discriminate against male applicants and employees,
without sufficient business justification, and [defendant] knows this. In
addition to its policies having a disparate impact and weeding out male
applicants, respondent engages in a pattern and practice of intentional
discrimination against males in the hiring process and in the terms and
conditions of employment of any males who are hired and uses its
accessories policy as a pretext for intentional discrimination in hiring and
in other terms and conditions of employment.26

Plaintiff asserts that he filed the supplemental charge “out of an abundance of caution”

in order to “mak[e] clear that Defendant’s accessory policy has a disparate impact on

male applicants and employees, and that Defendant engages in a pattern and practice

of discriminating against males as a class[.] The EEOC has not issued a Right to Sue

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letter on that charge.

III. DISCUSSION

Defendant has filed a motion to dismiss plaintiff’s complaint under 42 U.S.C.

§ 2000e-5 and Federal Rule of Civil Procedure 12(b)(6) for failure to exhaust his

administrative remedies.
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Defendant argues that plaintiff’s complaint does not

contain an “individual claim for relief,” and that plaintiff’s first charge of

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Id. at 6 (alterations supplied).
Doc. no. 1 (Complaint) ¶ 33 (alterations supplied).
See doc. no. 5 (Motion to Dismiss), at 1.
Id. at 3.

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Case 2:13-cv-01009-UNAS-CLS Document 9 Filed 07/31/13 Page 8 of 14

discrimination does not contain “allegations of class-wide discrimination.” 30

A. Whether Plaintiff’s Complaint Includes an “Individual Claim for Relief”

The Eleventh Circuit requires a plaintiff to provide “a short and plain statement

of the claim showing that [he] is entitled to relief.” Harrison v. Benchmark

Electronics Huntsville, Inc., 593 F. 3d 1206, (11th Cir. 2010) (alteration supplied)

(quoting Fed. R. Civ. P. 8(a)(2)). “The point is to ‘give the defendant fair notice of

what the claim is and the grounds upon which it rests.’” Davis v. Coca-Cola Bottling

Co. Consolidated, 516 F.3d 955, 974 (11th Cir. 2008) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007)).

Here, plaintiff’s complaint includes the allegations: that he applied for a sales

associate position;

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that he was qualified for the position;

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that, during his interview,

Manager Shannon Wells told him that she rarely hired males, that men typically

“don’t like” the company’s policy requiring all sales associates to wear six accessories

while working, and that men usually “can’t do the dress code,” or something to that

effect;
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and that, after he received a job offer, Ms. Wells refused to return his calls

seeking to establish a start date.

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32

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Id. at 2 (emphasis omitted).
Doc. no. 1 (Complaint) ¶ 10.
Id. ¶ 12.
Id. ¶¶ 17, 21.
Id. ¶¶ 26-29.

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Further, the complaint asserts that “[t]he named plaintiff seeks . . . relief for his

individual claims and those of the class.” The relief claimed includes requests for:

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“[a]n Order placing or restoring the plaintiff and the class he seeks to represent into

those jobs they would now be occupying but for the defendant’s discriminatory

practices”; “[a]n award of back pay, instatement or front pay, lost benefits, preferential

rights to jobs, and any other appropriate equitable relief to the plaintiff and class

members”; and “[a]n award of litigation costs and expenses, including reasonable

attorneys’ fees, to the plaintiff and class members.”36

In sum, it is apparent that plaintiff’s complaint includes an “individual claim for

relief.” Accordingly, this court will deny the portion of defendant’s motion to

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dismiss resting on that ground.

B. Whether Plaintiff’s Charges of Discrimination Include “Allegations of

Class-Wide Discrimination”

“As a general rule, a Title VII plaintiff cannot bring claims in a lawsuit that

were not included in her EEOC charge . . . . [A]llowing a complaint to encompass

allegations outside the ambit of the predicate EEOC charge would frustrate the

EEOC’s investigatory and conciliatory role, as well as deprive the charged party of

notice of the charge.” Cheek v. Western and Southern Life Insurance Co., 31 F.3d

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36

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Id. ¶ 39 (alteration and emphasis supplied).
Id. at 17 (alterations and emphasis supplied).
Id. at 3.

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497, 500 (7th Cir. 1994) (citations omitted).

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“Nevertheless, because most EEOC charges are completed by laypersons rather

than by lawyers, a Title VII plaintiff need not allege in an EEOC charge each and

every fact that combines to form the basis of each claim in her complaint.” Id. Stated

differently, “the specific words of the charge of discrimination need not presage with

literary exactitude the judicial pleadings which may follow.” Sanchez v. Standard

Brands, Inc., 431 F.2d 455, 465 (5th Cir. 1970).39

Instead, the claims that may be alleged in a judicial complaint are limited by

four boundaries: (i) the specific claims alleged in the underlying EEOC charge;

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(ii)

those claims which are “like or reasonably related to” those alleged in the underlying

charge;
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(iii) the scope of the EEOC investigation that can reasonably be expected to

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As the Seventh Circuit has observed, “[t]his rule serves the dual purpose of affording the
EEOC and the employer an opportunity to settle the dispute through conference, conciliation, and
persuasion, and of giving the employer some warning of the conduct about which the employee is
aggrieved.” Cheek v. Western and Southern Life Insurance Co., 31 F.3d 497, 500 (7th Cir. 1994)
(citations omitted).

39

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the
close of business on September 30, 1981.

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See, e.g., Alexander v. Fulton County, 207 F.3d 1303, 1332 (11th Cir. 2000) (“The starting
point of ascertaining the permissible scope of a judicial complaint alleging employment
discrimination is the administrative charge and investigation.”).

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See, e.g., Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir. 1971) (“[T]he
complaint in the civil action may properly encompass any discrimination like or reasonably related
to the allegations [contained in the EEOC] charge and growing out of such allegations.”) (emphasis
and alterations supplied, citations and internal quotation marks omitted); Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970) (“[T]he allegations in a judicial complaint filed
pursuant to Title VII ‘may encompass any kind of discrimination like or related to allegations
contained in the charge and growing out of such allegation during the pendency of the case before
the Commission.’”) (quoting King v. Georgia Power Co., 295 F. Supp. 943, 947 (W.D. Ga. 1968))

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grow out of the charge of discrimination;
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and (iv) any discriminatory acts that were,

in fact, considered during the EEOC’s investigation.

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The logic of this rule is inherent in the statutory scheme of Title
VII. A charge of discrimination is not filed as a preliminary to a lawsuit.
On the contrary, the purpose of a charge of discrimination is to trigger
the investigatory and conciliatory procedures of the EEOC. Once a
charge has been filed, the Commission carries out its investigatory
function and attempts to obtain voluntary compliance with the law. Only
if the EEOC fails to achieve voluntary compliance will the matter ever
become the subject of court action. Thus it is obvious that the civil
action is much more intimately related to the EEOC investigation than
to the words of the charge which originally triggered the investigation.
Within this statutory scheme, it is only logical to limit the permissible
scope of the civil action to the scope of the EEOC investigation which
can reasonably be expected to grow out of the charge of discrimination.

A more exacting rule would be destructive of the logic of the
statutory scheme, for it would impede the ability of the Commission to
effect voluntary compliance. If an alleged discriminator knew that a
particular issue which was the subject of EEOC conciliation efforts
could never be the subject of a civil action, his incentive toward
voluntary compliance would be lessened. . . .

Sanchez, 431 F.2d at 466 (emphasis supplied); see also, e.g., Evans v. U.S. Pipe &

(emphasis and alteration supplied); see also, e.g., Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538
F.2d 164, 167 (7th Cir. 1976) (en banc) (quoting Danner, supra).

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See, e.g., Mulhall v. Advance Security, Inc., 19 F.3d 586, 589 n.8 (11th Cir. 1994) (citing
Sanchez, supra). As the Seventh Circuit observed, however, this “part of the test is difficult to apply
because it requires speculation as to what the EEOC might or might not discover in the course of
an investigation.” Cheek v. Western and Southern Life Insurance Co., 31 F.3d 497, 500 (7th Cir.
1994).

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See, e.g., Cheek v. Western and Southern Life Insurance Co., 31 F.3d 497, 505 (7th Cir.
1994) (“We may grant that, if the EEOC considered the allegation of sexual harassment against
Crady to be a permissible amendment to Cheek’s EEOC charge and therefore investigated Crady’s
conduct, the allegations of sexual harassment should be treated as if it were part of the charge.”)
(emphasis supplied); Griffin v. Carlin, 755 F.2d 1516, 1522 (11th Cir. 1985).

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Foundry Company, 696 F.2d 925, 929 (11th Cir. 1983) (“[T]he Commission should

have the first opportunity to investigate the alleged discriminatory practices to permit

it to perform its role in obtaining voluntary compliance and promoting conciliation

efforts.”) (alteration supplied).

Defendant’s motion to dismiss asserts that plaintiff’s first charge of

discrimination does not contain “allegations of class-wide discrimination.” 44

Defendant admits, however, that plaintiff’s second charge includes allegations of

discrimination based on theories of “disparate impact” and “pattern and practice”

against males as a class.

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Defendant does not believe the second charge to be

sufficient because, “[u]pon information and belief . . . the EEOC has not completed

its investigation, made any determination, or granted [plaintiff] a right-to-sue” with

regard to that charge.
46

Plaintiff’s response to defendant’s motion to dismiss

“acknowledges that [plaintiff] has not yet received a right to sue in regard to his

second charge of discrimination[.]” Accordingly, this court’s analysis will only

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address the first charge of discrimination.

Plaintiff alleges in his first charge that Manager Shannon Wells made two

statements during his interview that apply to the class of men as a whole: i.e., that Ms.

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Doc. no. 5 (Motion to Dismiss), at 2 (emphasis omitted).
See id. at 2-3.
Id. at 3 (alterations supplied).
Doc. no. 7 (Response to Motion to Dismiss), at 6 (alterations supplied).

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Wells “rarely hires men”; and that “men typically don’t like the company’s

requirement for employees to wear six to seven ‘accessories.’” If true, the facts

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alleged show the existence of both a facially neutral policy (“the company’s

requirement for employees to wear six to seven ‘accessories’”), and of a disparate

impact on male applicants and employees (Ms. Wells’s statement that “men typically

don’t like” that requirement). Those facts also show that defendant has a pattern or

practice of discriminating against males (Ms. Wells’s statement that she “rarely hires

men.”).

Thus, although the language of plaintiff’s first charge of discrimination does not

“presage with literary exactitude the judicial pleadings which may follow” (such as

by using the words “disparate impact,” “pattern or practice,” or “class”), see Sanchez,

431 F.2d at 465, the charge includes sufficient factual matter to trigger an EEOC

investigation into his class allegations. Accordingly, this court will also deny the

portion of defendant’s motion to dismiss resting on that ground.

IV. CONCLUSION

For the reasons explained above, defendant’s motion to dismiss is DENIED

in its entirety.

DONE and ORDERED this 31st day of July, 2013.

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Doc. no. 5-5 (EEOC Charges), at 2.

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______________________________
United States District Judge

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