Opinion
4:10-cv-246.
February 28, 2011
ORDER
I. INTRODUCTION
Plaintiff Susan Smith ("Smith") sued her former employer First Margie, Inc., d/b/a Quail Run Lodge ("Quail Run"), and its owner Dan Connell ("Connell") (collectively "Defendants"), for violating her civil rights under Title VII and 42 U.S.C. § 1981, and for intentional infliction of emotional distress ("IIED"). See Doc. 1. Before the Court is Connell's "Motion and Memorandum to Dismiss Dan Connell." See Doc. 6. Connell contends that because Smith did not make any allegations against him in his individual capacity, and he is not an "employer" under Title VII, he is not a proper party. See id. Smith concedes that Connell is not an employer under Title VII and thus he is not a proper party under that theory. See Doc. 12; Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991); Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006). Therefore, Connell's motion is GRANTED with respect to Title VII. Smith insists, however, that her allegations against Connell for violating 42 U.S.C. § 1981 and intentional infliction of emotional distress survive. See Doc. 12.
II. STANDARD OF REVIEW
In considering a Federal Rule of Civil Procedure 12(b)(6) motion, all facts in Smith's Complaint "are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto." GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993). A complaint will not be dismissed so long as it contains factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (claim must have "facial plausibility"); Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
III. ANALYSIS A. 42 U.S.C. § 1981
Connell's only arguments that Smith's § 1981 claim should be dismissed are that her Complaint "does not make any allegations against Dan Connell in his individual capacity," see Doc. 6, and that "Smith does not allege that Connell personally participated in the alleged discrimination," see Doc. 13 at 2. "Contrary to Title VII, individual employees can be held liable for discrimination under § 1981." Moss v. W A Cleaners, 111 F. Supp. 2d 1181, 1187 (M.D. Ala. 2000) (citations omitted).
Smith's attribution of the alleged discriminatory actions to Connell, rather than Quail Run, is ambiguous. Throughout her allegations on the § 1981 count, Smith uses the singular term "Defendant." See Doc. 1 at 5 (" Defendant's racially discriminatory . . . Defendant has subjected Plaintiff Smith to retaliation . . . Defendant's racially discriminatory policy . . . Defendant retaliated . . .") (emphasis added).
It is unclear whether Smith meant to charge both Connell and Quail Run with this conduct or just one of them. On page 2 of her Complaint, Smith uses the singular "Defendant" to refer to each Dan Connell and Quail Run individually. See id. at 2 ("Plaintiff was employed by QUAIL RUN LODGE which is owner [sic] and operator [sic] by Defendant Dan Connell. . . . The QUAIL RUN LODGE is an employer as defined by 42 U.S.C.A. § 2000e(b). Defendant is subject to the provisions of Title VII . . .") (emphasis added).
In resolving a motion to dismiss, ambiguous language "should be construed in the light most favorable" to the non-moving party. See Miccosukee Tribe of Indians of Fla. v. So. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002). Neither defendant filed a Motion for a More Definite Statement under Federal Rule of Civil Procedure 12(e) before filing a joint answer, in which they defined the term "Quail Run Lodge" as referring to both Quail Run and Connell collectively. See Doc. 3. Defendants appear to have understood the term "Defendant," as used in Smith's Complaint, to refer to both defendants collectively. The Court agrees. Once one includes Connell within the term "Defendant," Smith's Complaint directly accuses him of retaliating against her for opposing an unlawful employment practice in violation § 1981. See Doc. 1 at 5.
As neither party has briefed the more general sufficiency of the factual allegations supporting the elements of Smith's § 1981 claim, the Court does not reach that issue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 581 (1992) (noting the "vitality of the adversarial process" to ensure proper resolution and "a realistic appreciation of the consequences of judicial action"). Connell's motion to dismiss is DENIED with respect to Smith's § 1981 count.
B. IIED
Connell's only argument that Smith's IIED claim should be dismissed is that her Complaint "does not make any allegations against Dan Connell in his individual capacity." See Doc. 6. When one reads Smith's use of the singular "Defendant" to include Connell, this is plainly incorrect. See Doc. 1 at 6. The Court also does not reach the more general sufficiency of Smith's IIED pleading. See Lujan, 504 U.S. at 581. Connell's motion is DENIED with respect to Smith's IIED claim.
IV. CONCLUSION
Connell's motion is GRANTED with respect to Title VII, but DENIED as to Smith's 42 U.S.C. § 1981 and IIED claims. Connell's motion to dismiss, see Doc. 6, is GRANTED IN PART AND DENIED IN PART.
This 28th day of February 2011.