HART

v.

BEAR STAFFING SERVICES, INC.

Plaintiff Alicia Hart sues Defendant Bear Staffing Services, Inc. (“Bear Staffing”) for race and disability employment discrimination under Title VII of the Civil Rights Act (“Title VII”) of 1964, 42 U.S.C. § 2000e; 42 U.S.C. § 1981; and the Americans with Disabilities Act (“ADA”) of 1990, 42 U.S.C. § 12101. (Doc. 33.) Bear Staffing moves to dismiss and argues that: (1) Count I of the Complaint is a shotgun pleading because it does not separate two distinct ADA claims; (2) the Complaint identifies no similarly situated individual necessary to state a discriminatory discharge claim under Title VII or Section 1981 (Counts II and III); and (3) Ms. Hart did not exhaust her Title VII hostile-work-environment claim (Count IV) because she failed to raise it in her Equal Employment Opportunity Commission (“EEOC”) charge. (Doc. 40.) Only Bear Staffing’s shotgun-pleading argument warrants dismissal of Count I. Otherwise, and contrary to Bear Staffing’s contention, Ms. Hart need not identify a similarly situated individual to state a discriminatory discharge claim. And her hostile work environment claim reasonably arises from the facts she alleged in her EEOC charge. Accordingly, Bear Staffing’s motion to dismiss (Doc. 40) is GRANTED IN PART and DENIED IN PART, and the Court will allow Ms.

Hart to amend her complaint.

DISCUSSION¹

Ms. Hart is an African-American who receives regular medical treatment for gastrointestinal reflux disease. (Doc. 33 ¶¶ 2, 12.) Bear Staffing hired her as a staffing specialist on March 4, 2019, and Shelley Seip was Ms. Hart’s direct supervisor. (Id. ¶¶ 8, 13.) Ms. Hart informed Ms. Seip of her medical condition and treatment. (Id. ¶ 15.) Bear Staffing ultimately terminated Ms. Hart’s employment on September⁵, 2019 because she missed too many days of work. Ms. Hart maintains, however, that her absences were either pre-approved by Ms. Seip or necessary for her to receive medical treatment. (Id. ¶ 18, 19, 21–24.) Ms. Hart asserts that Bear Staffing—through Ms. Seip—fired her because she is black. (Id. ¶¶ 25, 32–33.) The Complaint details several occasions when she heard Ms. Seip make racist or racially insensitive comments to other black

I. Count I is a Shotgun Pleading.

Bear Staffing first argues Count I is a shotgun pleading in that it does not separate two distinct legal claims—failure to accommodate and discriminatory discharge, both under the ADA. (Doc. 40 at 5–6.) A shotgun pleading is a complaint that violates either Federal Rules of Civil Procedure 8(a)(2) or 10(b). Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F. 3d 1313, 1320 (11th Cir. 2015).2 Given their confusing nature, shotgun pleadings are “flatly forbidden.” Id. at 1320 (citation omitted). The type of shotgun pleading that Bear Staffing identifies here is a complaint that does not separate “each cause of action or claim for relief” into a different count. Id. at 1323.

Much of the confusion over Count I arises from its title: “Failure to Accommodate and Discriminatory Discharge in Violation of 42 U.S.C. § 12112(a), the Americans with Disabilities Act.” (Doc. 33 at 9.) Ms. Hart’s response tries to

III. (Doc. 40 at 6–8.)4 But as Ms. Hart correctly notes, she may state a prima facie discriminatory-discharge claim by showing “that [s]he was replaced by someone

Dist., No. 20-11697, 2021 WL 1235170, at *2 (11th Cir. Apr.¹, 2021) (same).⁵ Here, the Complaint alleges that Bear Staffing replaced Ms. Hart (a black woman) with a non-black individual. (Doc. 33 ¶ 50.) Although Bear Staffing notes that this is a conclusory allegation, its point hinges on the assumption that a specific comparator must be identified, and therefore Ms. Hart’s allegation is not detailed enough. (Doc. 40 at 8.) The Court disagrees. From the disparaging comments Ms. Hart’s supervisor(s) made about her and other black individuals, the Court can infer from the Complaint that the decision to replace Ms. Hart with a non-black individual suggests an illegal racial preference. Cf. Hawkins v. Ceco Corp., 883 F. 2d 977, 984 (11th Cir. 1989) (allegation that white man replaced black plaintiff not enough to establish prima facie discriminatory discharge case “[w]ithout the underlying suggestion of an illegal preference for a nonminority”). Thus, Bear Staffing’s argument fails on this point.

Green v. Elixir Indust., Inc., 152 F. App’x 838, 840 (11th Cir. 2005). Like Ms. Hart, the plaintiff in Green stated in his EEOC charge that he was terminated for attendance policy violations, white coworkers received more favorable treatment, and he believed he had been discriminated against and terminated because of his race. Id. Similarly, his EEOC charge “noted the date of his termination as both the earliest and latest date of discriminatory conduct.” Id. at 841. The Eleventh

Circuit held that those facts only related to the plaintiff’s termination and did not “encompass a hostile work environment claim.” Id. Yet the same cannot be said here; there is one critical difference between this case and the cases Bear Staffing relies on, which found a plaintiff may not plead a hostile work environment claim that he or she did not previously mention in his or her EEOC charge. (Doc. 40 at 9–11 (discussing cases).) Ms. Hart’s EEOC charge states that “[d]uring Ms. Hart’s time at [Bear Staffing], she heard Ms. Seip make many racist and racially-insensitive comments about black African- Americans.” (Doc. 40-1, Ex. A ¶ 13 (emphasis added).) It then provides two examples of these comments, one of which happened on “several occasions.” (Id.) As Bear Staffing itself recognizes, the Complaint includes those two examples in support of Ms. Hart’s hostile work environment claim. (Doc. 40 at 10 (citing Doc.

Inc., 510 U.S. 17, 21 (1993) (citation omitted). 33 ¶¶ 28(a), (c)).) But because these allegations were “used to describe her retaliatory discharge based on race,” Bear Staffing maintains Ms. Hart cannot use them to “form the basis of her newly crafted racially hostile work environment claim.” (Id. at 11.)⁷ While the claim may be new, the allegations are not. Ms. Hart’s EEOC charge did include factual allegations which encompass a hostile work environment claim. Had the EEOC investigated the charge’s allegations of racial discrimination (even in the context of accommodation and discharge) it would have probably asked Ms. Hart about the “many” racial comments Ms. Hart made to and about black individuals—of which Ms. Hart is one. The charge also identifies more than just sporadic, episodic instances of racial discrimination. Rather, it qualifies Ms. Seip’s comments as occurring on “several occasions” (i.e., pervasive) during the time Ms. Hart worked for Bear Staffing. See, e.g., Ambus v. Autozoners, LLC, 938 F. Supp. 2d 1225, 1231 (M.D. Ala. 2013) (distinguishing Green and noting that “[t]his is not . . . a case in which a plaintiff seeks to assert a hostile environment claim after only having identified a discrete employment action”); Cargo v. Kan. City S. Ry. Co., No. 05-2010, 2010 WL 2804057, at *4 (W.D. La. July 13, 2010) (“[The plaintiff’s] claims of racial discrimination do not arise from a single isolated incident; rather, he refers” to several incidents so “the investigation which would be expected to grow

the Complaint does not allege new instances of discrimination like gender discrimination or failure to promote. It instead provides further examples of Ms. Seip’s racist remarks “which serve to amplify, clarify, or more clearly focus” the EEOC charge’s allegations. Wu, 863 F. 2d at 1547. Put differently, Count IV arises from both the same subject matter (e.g., racial discrimination) and factual predicates (e.g., Ms. Seip’s many racist comments) as Ms. Hart’s accommodation and discharge allegations in her EEOC charge. Although Ms. Hart may not have specifically intended for the EEOC to investigate as much, the charge contains enough facts to support an inference that the EEOC would have investigated a hostile work environment. Cf. Ramon v. AT&T Broadband, 195 F. App’x 860, 866 (11th Cir. 2006) (EEOC charge’s allegations about disparity in pay and disability leave did not “reasonably point[] to the kind of pervasive and oppressive conditions” showing the plaintiff intended for EEOC to investigate a hostile work environment claim). Thus, the Court finds Count IV proper as pleaded.

CONCLUSION

Ms. Hart has largely met her burden at the motion to dismiss stage. Her Title VII and Section 1981 discriminatory discharge claims need not identify a comparator as the Complaint states Bear Staffing replaced her with a non-black individual. And, considering the factual allegations of her EEOC charge about Ms. Seip’s many racial comments, Ms. Hart has exhausted Count IV’s hostile work environment claim. But the Court is unsure what exactly Ms. Hart is pleading in Count I and will therefore allow her leave to amend in that regard. Ifthe Court cannot figure it out, then it cannot in good conscience ask Bear Staffing to figure it out. Accordingly, it is ORDERED that: 1. Bear Staffing’s motion to dismiss (Doc. 40) is GRANTED IN PART and DENIED IN PART. 2. Count I of the Complaint (Doc. 33 at 9-10) is DISMISSED WITHOUT PREJUDICE. Ms. Hart must file an amended pleading consistent with this Order on or before May 12, 2021. 3. The motion to dismiss (Doc. 40) is DENIED to the extent it seeks any greater or different relief than this Order grants. ORDERED at Fort Myers, Florida, on April 28, 2021.

PLD ChabelbraLe

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE