SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION PAULA DEEN, PAULA DEEN...

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

LISA T. JACKSON, ))

Plaintiff, ))

vs. ) No. CV412-139)

PAULA DEEN, PAULA DEEN )ENTERPRISES, LLC, THE LADY )& SONS, LLC, THE LADY )ENTERPRISES, INC., EARL W. )“BUBBA” HIERS, and UNCLE )BUBBA’S SEAFOOD AND )OYSTER HOUSE, INC., )

)Defendants. )

MOTION TO DISMISS CERTAIN COUNTS OF PLAINTIFF’S SECOND AMENDED COMPLAINT AND MOTION TO STRIKE RACE-BASED ALLEGATIONS

COME NOW Defendants Earl W. “Bubba” Hiers and Uncle Bubba’s Seafood and Oyster

House, Inc. (“these defendants” or “the Hiers defendants”), and move pursuant to Fed. R. Civ. P.

12(b)(6), for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1), and for a judgment on the pleadings

under Fed. R. Civ. P. 12(c), to dismiss the following counts of Plaintiff Lisa T. Jackson’s second

amended complaint: count one: negligent failure to prevent sexual and racial harassment in the

workplace; count two: gross negligence and negligence per se, incorporating claims of sexual and

racial harassment; count three: intentional infliction of emotional distress; count six: hostile work

environment based upon racial discrimination in violation of 42 U.S.C. §1981; count seven:

disparate treatment based upon racial discrimination in violation of 42 U.S.C. §1981; count fourteen:

hostile work environment based upon racial discrimination in violation of Title VII; and count

fifteen: disparate treatment based upon racial discrimination in violation of Title VII.

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These defendants also move the Court to strike the allegations in paragraphs 58-82 that bear

the heading “RACIAL DISCRIMINATION IN THE WORKPLACE,” id., at 17-22, and to strike

the allegations in paragraphs 82-96 that bear the heading “VIOLENCE IN THE WORKPLACE,”

id., at 23-25. The Court should grant this motion.

I. PROCEDURAL HISTORY

Bubba Hiers is the brother of Paula Deen (also a defendant named in this complaint), and

with his sister, co-own Uncle Bubba’s Seafood and Oyster House. Doc. 47, ¶14. Plaintiff Lisa

Jackson, who is a Caucasian woman, worked for Uncle Bubba’s from February 2005 until August

2010, when she quit; she began first as a hostess, and shortly thereafter, became the restaurant’s

general manager. Id., at ¶¶ 19-20, ¶ 58.

After sending the defendants a demand letter promising that a “nationwide press release will

be issued to the major networks, newspapers, newsmagazines [sic] and news Websites across the

country” if the parties did not settle “quietly” and she filed suit, Jackson filed – with great fanfare

– a complaint in the Superior Court of Chatham County in March 2012, Doc 6-1, Doc 6-2, p. 11,

alleging claims for sexual harassment, intentional infliction of emotional distress, assault, battery,

negligent infliction of emotional distress, negligent retention, ratification, and breach of contract.

Doc. 6, Ex. 1. Plaintiff also sought attorneys fees under O.C.G.A. § 13-6-11.

The original complaint specifically claimed that Plaintiff sought relief for injuries visited

upon her in violation of her rights under the Constitution and the laws of the State of Georgia. Doc.

6, Ex. 1, ¶1. The defendants answered, asserting several defenses based on either Title VII or

Plaintiff’s failure to obtain a right to sue letter from the EEOC. Id., Ex. 4.

On April 20, 2012, Plaintiff filed an amended complaint, re-characterizing her complaint as


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one arising under the laws of the State of Georgia and the laws of the United States. Doc. 6, Ex. 11,

¶ 5. The first Amended Complaint asserted claims for negligent failure to prevent sexual and racial

harassment (count 1), gross negligence and negligence per se (count 2), intentional infliction of

emotional distress (count 3), assault (count 4), battery (count 5), hostile work environment and racial

discrimination in violation of the Civil Rights Act of 1866 (count 6), disparate treatment based on

race in violation of the Civil Rights Act of 1866 (count 7), ratification (count 8), punitive damages

(count 9), breach of contract (count 10), and attorneys fees pursuant to O.C.G.A. § 13-6-11 and 42

U.S.C. § 1988 (count 11). Id., Ex. 11.

Following the defendants’ removal of the amended complaint to this Court, Plaintiff moved

to remand the matter to the Superior Court, claiming that the removal was untimely since the

defenses to her original complaint suggested that she proceeded under federal law. Doc. 21 This

Court looked to the face of the original complaint, and observed that Jackson, as the “master of her

complaint,” “went out of her way to avoid reference to any federal law or constitutional provision

that could possibly make the case removable.” Doc 36, p. 9. The Court denied the motion to remand

on August 23, 2012. Doc. 36. While her motion to remand was pending, Plaintiff received a right

to sue letter from the EEOC. Doc. 47, pp. 56-57. She moved to amend her complaint a second time

to raise Title VII claims. Doc. 42. The Court granted her motion, Doc. 46, and Plaintiff filed her

second amended complaint to add Title VII claims based on hostile work environment and gender

discrimination (count 12), disparate treatment based on gender (count 13), hostile work environment

and racial discrimination (count 14) and disparate treatment based on race (count 15), Doc. 47.

II. STANDARD

In ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court “must accept all


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factual allegations in the complain as true and construe them in the light most favorable to the

plaintiff.” World Holdings, LLC v. Federal Republic of Germany, Nos. 11–14378, 11–14457 &

11–14461, 2012 WL 5512377 at *5 (11th Cir. Nov. 15, 2012). Despite these defendants’ dispute

with many, if not most, of the allegations in the complaint, these defendants are mindful of this

standard, and recite the facts as alleged in Jackson’s complaint.

III. THE COMPLAINTS

The Hiers defendants go into some detail about the migration of the allegations in Jackson’s

three complaints, all of which allege harm directed toward others.

A. The Original Complaint

In the original 9 count, 123 paragraph, 33 page complaint, Jackson alleged in a general

allegations section that:� “In violating Ms. Jackson’s rights, the Defendants have engaged in the mostheinous, abusive and disreputable conduct, and, under the false pretenses ofgender equity, racial equity and community generosity, have causedsubstantial financial and emotional harm to Ms. Jackson and othersassociated with their enterprises, and have further caused embarrassment andshame to this community . . . .” Doc. 6, ¶ 3 (emphasis added).� “ . . . Mr. Hiers’ violent behavior also included racial harassment, assault,battery and other humiliating conduct practiced upon the employees managedby Ms. Jackson. . . the conduct was threatening, even physically threatening,and universally humiliating. The staff [of the restaurant] lived in fear ofBubba Hiers.” Id., at ¶14 (emphasis added).� “. . . General Manager Dustin Walls communicat[ed] an apology across thecorporate enterprise for threatening to fire all the “monkeys” in his kitchen,a reference to the African-American kitchen staff. Another General Managercommunicated to a broader management audience his apparent apology forhaving exposed his fellow General Manager’s racist comment and for havingbeen too compassionate toward his employees.” Id., at ¶27 (emphasis added).

In a Section falling under the heading, “Racial Discrimination in the Workplace,’” except for


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the conclusory allegation that, Jackson “a Caucasian, white female was subject to racially

discriminatory conduct every day she came to work,” Doc. 6, Ex. 1, ¶ 50, all of the race based

allegations concern comments and actions about or directed to African-American co-workers.

Jackson alleges that:

• Paula Deen made racially derogatory remarks about servers at her brother’swedding in 2007, Id, at ¶ 51;

• African-American employees could not use the front door or the customers’bathrooms. Id,. at ¶¶ 52-53; and

• African-American employees could not be stationed at the front of therestaurant, and when there was an African-American hostess, Hiers“complained” and fired the hostess afer “being falsely accused of stealing awhite customer’s purse.” Id., at ¶¶ 54-55.

Jackson asserted that she and her employees “were surrounded in the workplace with the most

vulgar and obscene racial comments,” including the following allegations of things said by Mr. Hiers

in Jackson’s presence:

• that he wished he could “put all those [racial epithet] [in the kitchen] on aboat to Africa”;

• that he physically and violently shook an African American male employeein the kitchen;

• that he told his African American security guard “don’t you wish you couldrub all the black off you . . . you just look dirty, I bet you wish you could.”

• “they should send President Obama to the oil spill in the Gulf [of Mexico] sohe could [racial epithet]-rig it”;

• that he told a wildlife trapper, “you also got a bunch of coons in this kitchenyou can trap.”

• that he told a joke using [a racial epithet] in front of an event coordinatorat a fund raiser, who then expressed her discomfort to Ms. Jackson “withMr. Hiers and his language.”


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Doc. 6, Ex. 1, ¶ 56.

Mr. Schumacher is alleged to have told jokes and ridiculed the President of the United States.

Doc. 6, Ex. 1, ¶ 57. And, finally, Jackson alleges that she suffered from having to “experience” the

same degrading and humiliating behavior directed at her staff.” Id., at ¶58. (emphasis added). She

specifically alleges that she was “aggrieved and injured” cause of the “harassment and abusive

treatment of her employees.” Id.

The section of the original complaint entitled “violence in the workplace” alleged conduct

directed at the entire staff or “an African-American male kitchen staff person.” Doc. 6, Ex. 1, ¶¶ 59-

63. Jackson alleged that:

• “During a meeting called . . .[in the] restaurant kitchen. . ., Hiers beganbeating on his chest and challenging anyone and everyone in the kitchen tofight him. . .Ms. Jackson scanned the room in horror and saw her staff,recognizing the look of fear. . .Ms. Jackson’s job was then. . . to control thedamage so that she could both comfort her staff, but also retain their services.. . .” Id., at ¶59. (emphasis added)

• “. . .[In an interview of an] African-American male kitchen staff person. . .Mr. Heirs [sic] repeatedly screamed at him . . .Mr. Hiers proceeded tophysically and violently shake this individual. . . [Jackson] and others nearbyand in the kitchen feared for their physical safety. . . .” Id., at ¶ 60. (emphasisadded)

• “The staff of [the restaurant] was in a constant state of fear. . . .” Id., at ¶61.(emphasis added)

• “The stress of repeatedly taking on the role of anticipating Bubba Hiers’violence. . . and playing the co-between role with her staff. . . .” Id., at ¶62.(emphasis added)

• “The outrageous and unlawful conduct thrust upon Ms. Jackson’s staff. . . .”Id., at ¶63. (emphasis added)

To recap, both of these sections – “racial discrimination in the workplace” and “violence in

the workplace” – alleged conduct supposedly directed at Jackson’s African-American co-workers.


This allegation was not in the original complaint.1

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Id., at ¶¶50-63.

B. The Amended Complaints

The factual allegations in the amended complaints are largely the same; the key difference

between the first and second amended complaints is the addition of counts. Because this motion to

dismiss seeks dismissal of the second amended complaint, the Hiers defendants focus on it.

Jackson’s second amended complaint contains 11 counts, 193 paragraphs and 47 pages. In

fact, the statement of facts is almost 28 pages long. Doc. 47, pp. 5-32. Jackson raised for the first

time in her first amended complaint, and reiterated in her second amended complaint, that her father

was a dark-skinned Sicilian, id., pp. 17, 21, ¶¶ 58, and that her “father has been mistaken for being

African-American and Ms. Jackson has experienced prejudice and discrimination on account of this

familial association. In “one notable example,” Bubba Hiers, upon viewing a picture of Ms. Jackson’s

father, exclaimed, “He looks like a [racial epithet] . . . “ id., at 57. She also alleges that her nieces are

bi-racial, with an African-American father, so “derogatory remarks regarding African Americans are

even more personally offensive to Ms. Jackson than they would be to another white citizen.” Id., pp.

17, 21-22, ¶¶ 59, 78.

Jackson asserts in 25 paragraphs what she described as “RACIAL DISCRIMINATION IN

THE WORKPLACE.” Doc. 47, pp. 17-32, ¶¶ 58-82 (emphasis in original). Jackson describes the

use of racial epithets, id., at ¶¶ 58, 62, 71-74; claims that “African-American job applicants were held

to different, more stringent standards than white applicants, and once hired, white employees were

held to a less stringent standard of performance than African-American employees,” id., at ¶ 65 ; and1

describes adverse treatment of African-American employees, id., at ¶¶66-70. Jackson contends that


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she was the “personal target of . . . racially harassing behavior,” and that she “suffered from

experiencing the same degrading and humiliating behavior directed at her staff. . . .” Id., pp. 21-22,

¶ 78 (emphasis added). She contends that this treatment interfered with her relationships with that

staff and led to conflicts with upper management. Id., pp. 18, 22, ¶¶ 65, 80.

Under the heading “VIOLENCE IN THE WORKPLACE” Jackson catalogues the

following alleged conduct:� “During a meeting called . . .[in the] restaurant kitchen. . ., Hiers beganbeating on his chest and challenging anyone and everyone in the kitchen tofight him. . .Ms. Jackson scanned the room in horror and saw her staff,recognizing the look of fear. . .Ms. Jackson’s job was then. . . to control thedamage so that she could both comfort her staff, but also retain their services.. . .” Doc. 47, ¶¶ 83-85 (emphasis added).� “. . .[In an interview of an] African-American employee (id., at ¶ 87) . . . Mr.Heirs [sic] . . . repeatedly screaming at him (id., at ¶ 88). . . Mr. Hiersphysically and violently shook him (id., at ¶ 89) . . . Ms. Jackson and othersnearby and in the kitchen feared for their physical safety. . . .” id., at ¶ 91(emphasis added). � “The staff of Uncle Bubba’s restaurant was in a constant state of fear. . . .”Id., at ¶ 92 (emphasis added).� “The stress of repeatedly taking on the role of anticipating Bubba Hiers’violence. . . and protecting herself and her staff from his misconduct causedMs. Jackson enormous stress. . . .” Id., at ¶ 92.� “Ms. Jackson, in turn, felt responsible for providing a safe and lawful workenvironment in which they could work.” Id., at ¶ 95.

IV. ARGUMENT AND CITATION OF AUTHORITY

The Hiers defendants now move to dismiss the claims set forth below for failure to state a

claim under Fed. R. Civ. P. 12(b)(6), for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) and for

a judgment on the pleadings under Fed. R. Civ. P. 12(c). These defendants also move to strike the


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race-based allegations in the second amended complaint.

A. Counts One and Two Should be Dismissed

Counts one and two respectively, assert claims for “negligent failure to prevent sexual and

racial harassment in the workplace,” Doc. 47, pp. 32-35, and “gross negligence and negligence per

se,” id., at 35-37. Count one describes Title VII as the “applicable law” and alleges that these

defendants breached their “duty owed to Ms. Jackson under O.C.G.A. §§ 51.1-6 and 51-1-8.” id., p.

47, ¶ 129. And, count two alleges that these defendants violated their duties under Title VII and the

Civil Rights Act of 1886 and failed to exercise even slight diligence and are “guilty of negligence per

se”. Id., at ¶¶ 150-152.

But the Georgia Supreme Court has found that O.C.G.A. § 51-1-6 and § 51-1-8 do not give

rise to a cognizable claim for breach of a legal duty where the duty allegedly breached is a violation

of the Age Discrimination in Employment Act. In Reilly v. Alcan Aluminum Corp., 272 Ga. 279,

280, 528 S.E.2d 238 (2000), the Supreme Court (answering a certified question from the Eleventh

Circuit) determined that an at-will employee may not sue in tort under Section 51-1-6 or Section 51-1-

8 for wrongful discharge based upon age discrimination. In reaching this determination, the Court

held that these statutes “merely set forth general principles of tort law, and do not specifically create

an exception to the at-will employee doctrine.” Id. Indeed, “the inability of an at-will employee to

sue in tort for wrongful discharge is a fundamental statutory rule governing employer-employee

relations,” and while the General Assembly enacted a statute prohibiting age discrimination, it did

not provide for a civil remedy. Id. Thus, age discrimination could not serve as a basis for a tort

claiming of wrongful discharge. Id.

Plaintiff’s second amended complaint admittedly does not utter the words “wrongful


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discharge.” But in second amended count one, here again is how she pled the duty allegedly owed

to her:

Applicable law, including Title VII of the Civil Rights Act of 1964, established a dutyto prevent and correct sexual and racial harassment in the workplace, which dutyDefendants owed to Ms. Jackson under O.C.G.A. §51-1-6 and 51-1-8. Where suchduty is breached, Ms. Jackson is entitled to bring an action against Defendants.

Doc. 47, ¶ 129. Here is the question answered in the negative in Reilly: “Does Section 51-1-6 or

Section 51-1-8 give rise to a cognizable claim for breach of a legal duty where the duty allegedly

breached is the violation of the Age Discrimination in Employment Act”? 272 Ga. at 281. As in

Reilly, Jackson’s second amended count one has not shown the breach of an actionable legal duty,

so it should be dismissed.

Count two, which alleges gross negligence and negligence per se, also fails. Here are the

pertinent allegations:

150.Defendants failed to exercise even slight diligence to protect Ms. Jackson in

violation of O.C.G.A. §51-1-4.151.

Defendants are guilty of negligence per se in violation of O.C.G.A. § 51-1-8.152.

Defendant [sic] is guilty of negligence per se, as their sexual and racialharassment directed towards and in the presence of Ms. Jackson violates the dutiesestablished by Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq. andthe Civil Rights Act of 1866, 42 U.S.C. §1981, as amended.

150.The purpose of Title VII of the Civil Rights Act and the Civil Rights Act of

1866 are, inter alia, to prevent unlawful sexual and/or racial discrimination in thework place. These statutes create a duty which may be enforced through an action fornegligence against these Defendants.

Reilly demands the same result with these claims: O.C.G.A. § 51-1-8 does not give rise to a

cognizable claim for breach of a legal duty based upon discrimination. Irrespective of Reilly, Title

VII and Section 1981 do not provide a basis for a negligence per se claim. “Negligence per se allows


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Jackson’s second amended complaint cites Section 51-1-8, not Section 51-1-6, in count two. Doc.47, ¶ 151. Section 51-1-8 states that private duties may arise from statute or contractual relations,and the violation of a private duty, accompanied by damage, gives a right of action. O.C.G.A. § 51-1-8. That section “‘does not confer a separate cause of action in tort upon one who has suffered abreach of a legal or private duty,’” but “‘simply authorizes the recovery of damages for the breachof a legal duty otherwise created.’” Byung Ho Cheoun v. Infinite Energy, Inc., 363 Fed. Appx. 691,695 (11th Cir. 2010) (per curiam; unpublished), citing Parris v. State Farm Mut. Auto. Ins., 229 Ga.App. 522, 524, 494 S.E.2d 244 (1997). Section 51-1-6 appears to apply to legal duties, while §51-1-8 appears to apply to private duties. Reilly discusses the two statutes in tandem. 272 Ga. at 279-280.In any event, the statutes are similar, and the same analysis would apply.

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a court to find civil liability in a statute that does not already provide for it.” See Miller v. Massi, No.

CV-06-2106-PCT-FJM, 2007 WL 841397 at *2 (D. Ariz., Mar. 16, 2007) (citing Prosser & Keeton

on The Law of Torts, § 36, at 220-21 (5th ed.1984)). Title VII and Section 1981 “provide[] ample

civil liability for those in violation of [their] statutory scheme[s],” so courts should “not infer

additional civil liability where none is needed.” Id.

Indeed, the Eleventh Circuit considered O.C.G.A § 51-1-6 under the lens of the Americans

with Disabilities Act in Higdon v. Jackson, 393 F.3d 1211 (11th Cir. 2004). Higdon observed that

Section 51-1-6 “allows an individual to assert a tort claim for the violation of a legal duty where a

cause of action does not otherwise exist.” Id., at 1221. The plaintiff cited the purported violation2

of the ADA as the breach of a legal duty giving her a remedy under Section 51-1-6, but “an express

cause of action already exists as part of a remedial scheme under . . . the ADA.” Id. Since the ADA

provides a cause of action for Higdon’s claimed injuries, she could not invoke §51-1-6 to “pursue

duplicative remedies for an alleged violation of federal law.” Id. at 1222; accord Cruet v. Emory

Univ., 85 F. Supp. 2d 1353, 1354 (N.D. Ga. 2000) (Order).

Here, Jackson has a private right of action under Title VII and Section 1981. Given the


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availability of these avenues, the court should dismiss count two of the amended complaint.

i. Ms. Jackson Has No Basis for a Negligence Claim Under Georgia Law.

Ms. Jackson’s alleged emotional upset stemming from alleged racial discrimination regarding

African-Americans gives her no cause of action to assert such claimed emotional injury under Georgia

negligence law. Georgia’s impact rule precludes recovery here in a claim concerning negligent

conduct where a recovery for emotional distress is sought. “Georgia’s impact rule is succinctly stated

in Ryckeley v. Callaway, 261 Ga. 828, 412, S.E. 2d 826 (1992): ‘In a claim concerning negligent

conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff,

and that impact must be a physical injury.’” Lee v. State Farm Mutual Ins. Co., 272 Ga. 584, 586,

533 S.E.2d 82 (2000). “Thus, the current Georgia impact rule has three elements, (1) a physical

impact to the plaintiff; (2) the physical impact causes physical injury to the plaintiff; and (3) the

physical injury to the plaintiff causes the plaintiff’s mental suffering or emotional distress.” Id., 272

Ga. at 586. “As Ryckeley notes, there is not the necessity of an impact when the alleged conduct

directed toward the plaintiff is malicious, wilful or wanton. [Cits.]” Id., 272 Ga. at 584, fn. 2. In Lee,

a landmark Georgia case, the Georgia Supreme Court summarized the law and extended recovery

beyond where it had previously been extended: “When, as here, a parent and child sustain a direct

physical impact and physical injuries through the negligence of another, and the child dies as the

result of such negligence, the parent may attempt to recovery for serious emotional distress from

witnessing the child’s suffering and death without regard to whether the emotional trauma arises out

of the physical injury to the parent. [Cit.] This is in accord with the precepts of the impact approach

and appropriately restricts recovery to those directly affected by the defendant’s negligent act or

omission.” Id., 272 Ga. at 588.


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Ms. Jackson may not use that she has claimed “willful misconduct, malice, wantonness” at

Count Two, regarding gross negligence and negligence per se, to avoid the impact rule since there are

no facts alleged to make plausible a claim that harassing or discriminatory acts on the basis of her

race, Caucasian, were directed to her.

In addition to alleging facts that could show that the defendants’ behavior wasmalicious, wilful, or wanton, to meet this exception to the impact rule, the appellantsalso must allege sufficient facts that could show that the defendants’ behavior wasdirected at them. See Ford v. Whipple, 225 Ga. App. 276, 278, 483 S.E.2d 591(1997)(“Disregard of general consequences is a part of wanton behavior, but theexception to the impact rule requires more; the wantonness must be directed to theplaintiff.”) Malicious, wilful, or wanton behavior that threatens the public in generalis not a sufficient showing; the conduct must be directed at a specific person or groupof people in order to fall within the exception. [Cits.]

Clarke v. Freeman, 302 Ga. App. 831, 836, 692 S.E.2d 80 (2010). See Pike Nurseries, Inc. v. Allen,

253 Ga. App. 312, 558 S.E.2d 834 (2002)(“The only exception to the impact requirement is ‘when

the alleged conducted directed toward the plaintiff is malicious, wilful or wanton.’ [Lee, id. , 272 Ga.

at 584] . . . ‘To say the actor’s conduct is directed at anyone who is in the path ignores the additional

requirement. Such an analysis would create the tort of negligent infliction of emotional distress and

ignore the rule that even malicious, wilful or wanton conduct will not warrant a recovery for the

infliction of emotional distress if the conduct was not directed toward the plaintiff.’ Ford v. Whipple,

225 Ga. App. 276, 483 S.E.2d 591 (1997)); See also McCunney v. Clary, 259 Ga. App. 260, 576

S.E.2d 635 (2003); Bennett v. Moore, 312 Ga. App. 445, 718 S.E.2d 311 (2011).

The “pecuniary loss rule” sometimes cited in Georgia decisions permitting recovery for

emotional distress at times in negligence cases where there is “a pecuniary loss resulting from an

injury to the person which is not physical” (see, e.g. Phillips v. Marquis at Mt. Zion-Morrow, 305 Ga.

App. 74, 699 S.E.2d 58 (2010)), does not aid Ms. Jackson. See, e.g. Owens v. Gateway Mgmt. Co.,


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227 Ga. App. 815, 490 S.E.2d 501 (1997).

In this case, Ms. Jackson may not assert a claim for emotional injury in a Georgia law

negligence claim arising out of alleged racial discrimination allegedly practiced against African-

Americans. Counts one and two should be dismissed.

B. Count Three (Intentional Infliction of Emotional Distress) Should be Dismissed.

To raise a cognizable claim for intentional infliction of emotional distress, “a plaintiff must

show all four of the following elements: (1) the conduct must be intentional or reckless; (2) the

conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful

conduct and the emotional distress; and (4) the emotional distress must be severe.” Jones v. Fayette

Family Dental Care, Inc., 312 Ga. App. 230, 231, 718 S.E.2d 88 (2011) (quoting United Parcel Svc.

v. Moore, 238 Ga.App. 376, 377, 519 S.E.2d 15 (1999); citing Jones v. Warner, 301 Ga.App. 39, 43,

686 S.E.2d 835 (2009)).

The fact that Jackson’s complaint predominantly describes conduct directed to others dooms

her intentional infliction of emotional distress claim in count three, as these claims require that the

complained-of conduct be directed toward the plaintiff. “Implicit in the requirement that the conduct

be intentional is the requirement that it be directed toward the complainant... Where the conduct is

directed towards others, not the complainant, [cit.]... she cannot establish a necessary element of that

claim.” Sevech v. Ingles Markets, Inc., 222 Ga. App. 221, 224, 474 S.E.2d 4 (1996) (emphasis

supplied; internal citation omitted) (quoting Jackson v. Nationwide Credit, 206 Ga.App. 810, 426

S.E.2d 630 (1992) (granting summary judgment on Mrs. Sevech’s claim for intentional infliction of

emotional distress where Ingles’ conduct was directed toward Mr. Sevech, whom the store accused

of shoplifting)); see also Reece v. Chestatee State Bank, 260 Ga. App. 136, 142, 579 S.E.2d 11 (2003)


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(finding as a matter of law that statements about the plaintiff made by the bank’s lawyer to the

boyfriend of the plaintiff’s daughter provided no basis for intentional infliction claim because the

statements were directed to a third party, not the plaintiff); Kornegay v. Mundy, 190 Ga. App. 433,

435, 379 S.E.2d 14 (1989) (observing that while employer’s “allegedly disruptive and questionable

professional conduct directed toward others . . . may give rise to justifiable concerns on the part of

the parties who were directly affected, . . . such conduct would not afford [plaintiff] a viable basis for

claiming that she herself was justifiably frightened, humiliated, embarrassed, or outraged”); cf. Wolff

v. Middlebrooks, 256 Ga. App. 268, 271, 568 S.E.2d 88 (2002) (observing that “[d]efamatory

remarks made ... to the public in general are classic examples of conduct that, though harmful to the

plaintiff, was directed toward the hearer of the statements, not to the plaintiff, and thus is not

actionable as intentional infliction of emotional distress”).

Consistent with the requirement that the conduct must be directed toward the plaintiff, the

Georgia Court of Appeals has observed that “sexually inappropriate comments” made to a male

plaintiff’s female co-worker “cannot be considered for this [intentional infliction] analysis. . . .”

Ghodrati v. Stearnes, 314 Ga. App. 321, 323 n. 7, 723 S.E.2d 721 (2012).

Ghodrati is also instructive on the question of whether the conduct complained of is sufficient

to provide a remedy. Ghodrati held that relief is provided only when, “‘the conduct has been so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Id., at *2 (quoting

Lockhart v. Marine Mfg. Corp., 281 Ga.App. 145, 147 (2006)). Even taking plaintiff’s allegations to

be true, as we must at this juncture, “it is not the type of behavior for which the law grants a remedy.

Id. Thus, count three should be dismissed.


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C. Plaintiff’s Race Based Claims Fail as a Matter of Law Therefore Counts 6, 7, 14 and 15Should be Dismissed

Jackson is Caucasian woman. Nonetheless, she has asserted Section 1981 claims for hostile

work environment based upon alleged racial discrimination (Count 6) and disparate treatment racial

discrimination (Count 7) and Title VII-based claims for hostile work environment based upon alleged

racial discrimination (count 14) and disparate treatment in the terms and conditions of employment,

including constructive discharge, based upon alleged racial discrimination (count 15). Doc. 47, pp.

40-43, 48-52. Jackson lacks standing, and for the reasons below, these counts should be dismissed.

Although the Hiers defendants break out their arguments into Title VII and Section 1981

discussions, the same law and standards apply – as Jackson acknowledges. Doc 37, pp. 5-6 & n. 2.

i. Jackson Lacks Standing to Bring her Race Based Claims

Title VII provides a right of action for a “person claiming to be aggrieved . . . by [an] alleged

unlawful employment practice.” 42 U.S.C. §2000e-5(f)(1). However, standing is a jurisdictional

inquiry, and Jackson, as the party invoking federal jurisdiction, bears the burden of establishing that

she has standing to sue. American Civil Liberties Union of Florida, Inc. v. Dixie County, Florida, 690

F.3d 1244, 1247 (11th Cir. 2012). “[S]tanding must exist with respect to each claim” in the

complaint. Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1002-03 (11th Cir. 2004). A

plaintiff bears the burden of showing her standing to sue under Article III. See Mulhall v. UNITE

HERE Local 355, 618 F.3d 1279, 1286 (11th Cir. 2010). To show Article III standing, a plaintiff

must demonstrate three things: 1) she has suffered, or imminently will suffer, and injury-in-fact; 2)

that injury is fairly traceable to defendants’ conduct, and 3) a favorable judgment is likely to redress

the injury. Id. To demonstrate the third prong, the plaintiff has “to show that [s]he has a legally

cognizable interest that has been or imminently at risk of being invaded.” Id.


17

Pertinent to the inquiry here, is the recognition that an injury in fact, gives the plaintiff a

personal stake in the outcome of the controversy. Mulhall,618 F.3d at1286. Standing “focuses on the

party seeking to get [her] complaint before a federal court and not on the issues [s]he wishes to have

adjudicated.” Id.

But Article III standing alone is not sufficient in Title VII cases. “If any person injured in the

Article III sense by a Title VII violation could sue, absurd consequences would follow,” meaning that

the term “aggrieved” as used in 42 U.S.C. §2000e-5(f)(1) “must be construed more narrowly than the

outer boundaries of Article III.” Thompson v. North Am. Stainless, LP, ___ U.S. ___, 131 S. Ct. 863,

869 (2011) (analyzing in context of retaliation claim made by an employee’s fiance, whom the

employer fired after his fiancee filed an EEOC charge alleging sex discrimination); cf. Hollywood

Mobile Estates Ltd. v. Seminole Tribe of Florida, 641 F.3d 1259, 1268 (11th Cir. 2011) (stating that

in addition to the “immutable requirements of Article III,” federal courts also use “a set of prudential

principles that bear on the question of standing”). Instead of broad Article III standing, the term

“aggrieved” in Title VII incorporates a zone of interests test, “enabling suit by any plaintiff with an

interest ‘arguably [sought] to be protected by the statutes, . . . while excluding plaintiffs who might

technically be injured in an Article III sense but whose interests are unrelated to the statutory

prohibitions in Title VII.” Id., at 870.

In Thompson, the Supreme Court explained the proper confines of Title VII protection are

limited to those individuals who fall within the “zone of interest” of Title VII protection. Id. Those

people who fall within the “zone of interest are the ones sought to be protected by the statutory

provision. 131 S. Ct. at 870. Individuals whose rights are only marginally related are not considered

to be in the zone of interest. Id.


18

Thompson provides an example of an aggrieved person in the zone of interests. There,

Thompson’s fiancee (who was also his co-worker) filed an EEOC charge alleging sex discrimination.

Id. at 867. Three weeks after the EEOC notified the employer of the fiancee’s charge, the employer

fired Thompson. Id. Thompson himself filed an EEOC charge asserting that the employer fired him

to retaliate against his fiancee for filing an EEOC charge. Id. Thompson lost in the lower courts, but

the Supreme Court found that the employer’s firing of Thompson rose to unlawful retaliation and that

Title VII gave Thompson a right of action. Id., at 867-71. As for the unlawful retaliation finding, the

Court observed that “firing a close family member will almost always meet the [retaliation] standard,

and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we

are reluctant to generalize.” Id., at 868.

As for whether Title VII gave Thompson a right of action, the Court first found that being an

“aggrieved person” under Title VII meant more than having Article III standing: “If any person

injured in an Article III sense by a Title VII violation could sue, absurd consequences would follow.”

Id., at 869. To present these “absurd consequences,” the Supreme Court looked instead to whether

a Title VII plaintiff fell with the “zone of interests sought to be protected by the statutory provision

whose violation forms the legal basis for his complaint.” Id., at 870 (looking to law interpreting

similar language in Administrative Procedure Act). This standard excludes “plaintiffs who might

technically be injured in an Article III sense but whose interests are unrelated to the statutory

prohibitions in Title VII.” Id. In finding that Thompson fell in this zone of interests, the Court noted

that Thompson was “not an accidental victim of the retaliation – collateral damage, so to speak of

the employer’s act.” Id. Instead, “injuring him was the employer’s intended means of harming”

Thompson’s fiancee, and “[h]urting [Thompson] was the unlawful act by which the employer


19

punished her.” Id.

Thus, Thompson contemplates a two-part test. See Thompson, 131 S. Ct. at 867. First, does

the action complained of constitute prohibited activity under Title VII? And second, if so, is the

plaintiff an aggrieved person under Title VII so as to have standing to pursue that claim?

Title VII prohibits employers from discriminating against “any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1). Jackson makes claims for race-

based hostile work environment (count 14) and race-based disparate treatment (count 15). Doc. 47,

pp. 48-52. At their essence, both claims are disparate treatment claims: “Disparate treatment can take

the form of either a ‘tangible employment action, such as a firing or demotion, or of a ‘hostile work

environment’ that changes ‘the terms and conditions of employment, even though the employee is

not discharged, demoted or reassigned.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798,

807 (11th Cir. 2010) (en banc).

To prove a hostile work environment specifically, a plaintiff must show:

1) that he or she belongs to a protected group; (2) that the employee has been subjectto unwelcome [racial] harassment . . .; (3) that the harassment must have been basedon the [race] of the employee; (4) that the harassment was sufficiently severe orpervasive to alter the terms and conditions of employment and create adiscriminatorily abusive working environment; and (5) a basis for holding theemployer liable.

Id., at 808. But “Title VII is not a civility code, and . . . harassment must discriminate on the basis

of a protected characteristic in order to be actionable.” Id., at 809 n. 3. While Title VII prohibits

discrimination on the basis of race, Jackson cannot meet this test. At the very least, she is not in a

protected group, and the offensive conduct alleged in her complaint was not based upon Jackson’s

race (white).


20

ii. The Eleventh Circuit Has Not Recognized a Hostile Work Environment Claim fora Bystander

The seminal case in the Eleventh Circuit is Parr v. Woodmen of the World Life Ins. Co., 791

F.2d 888 (11th Cir. 1986). There, Parr, a white man married to an African-American woman,

asserted that his employer discriminated against him because of his race under Title VII; the employer

did not hire Parr because of his interracial marriage. Id., at 889. The Court found that associational

harassment is recognized where a plaintiff claims discrimination based upon an interracial marriage.

Id., at 892.

Jackson, however, seeks a much more expansive interpretation under Title VII and Section

1981 by allowing any individual who might be working around someone who is racially discriminated

against to bring a claim for racial discrimination to vindicate the rights of those subject to the

discrimination. There have been no Eleventh Circuit cases recognizing such a broad interpretation

of Title VII and Section 1981.

In fact, the Fourth, Sixth, Seventh and Ninth Circuits also have adopted a more limited

interpretation of Title VII. Those Circuits refused to recognize a claim for harassment based on

discrimination directed at others where no loss of associational benefits or discrimination is alleged.

See Childress v. City of Richmond, 134 F.3d 1205, 1207 (4th Cir.) (per curiam), cert. denied, 118

S.Ct. 2322 (1998) (holding that white police officers did not have standing under Title VII to bring

an action for discrimination directed at other officers outside their protected class); Barrett v.

Whirlpool Corp., 556 F.3d 502, 516 (6th Cir. 2009) (holding that in a third-party claim for hostile

work environment, only harassment that was directed toward Plaintiffs themselves is actionable);

Bermudez v. TRC Holdings, 138 F.3d 1176 (7th Cir. 1998); Patee v. Pacific Northwest Bell

Telephone Co., 803 F.2d 476, 479 (9th Cir. 1986) (holding that male workers cannot assert the right


21

of their female co-workers to be free from discrimination based on their sex). .

In Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1180 (7th Cir. 1998), Schlichting, a

white female employee, contended that fellow employees were biased against African-Americans or

tolerated their clients’ preferences to place white workers in jobs. The Seventh Circuit made these

observations:

None of these words or deeds was directed against Schlichting. White women werewelcome at TRC and fared well there. Perhaps TRC was violating the rights ofpersons who came to it seeking placement for employment, but Schlichting is notentitled to enforce their rights and does not claim that she was retaliated against forsticking up for the rights of black co-workers or clients. See 42 U.S.C. § 2000e-3. Herclaim is not that white women were harassed on account of their race or sex, but thatpersons of any race or sex who were opposed to discrimination felt uncomfortable.We have never recognized this as a valid theory of discrimination under Title VII, andit is hard to see how it could be reconciled with the proposition that laws must beenforced by the victims (or by public prosecutors) rather than by third partiesdiscomfited by the violations. If unease on observing wrongs perpetrated againstothers were enough to support litigation, all doctrines of standing and justiciabilitywould be out the window. . . .

Id. Even if Schlichting heard comments that would be actionable by her African-American co-

workers, a reasonable person would have found them “‘merely offensive,’ because they posed no

threat to her personally.” Id., at 1181.

Finally, Thompson itself addressed a type of associational discrimination in retaliation cases.

Again, the employer fired Thompson shortly after it received notice that his fiancee filed an EEOC

charge alleging sex discrimination. The Court observed that “Title VII’s antiretaliation provision

must be construed to cover a broad range of employer conduct”; unlike the substantive provisions of

Title VII, the antiretaliation provision was not limited to actions that affected the terms and conditions

of employment but included any employment action that may have dissuaded someone from making

a charge of discrimination at all. 131 S. Ct. at 868. The employer argued that applying this standard


22

to third-party reprisals would “place the employer at risk any time it fires any employee who happens

to have a connection to a different employee who filed a charge with the EEOC. Id. The Court

“acknowledge[d] the force of this point,” but refused to create a categorical rule that third-party

reprisals do not violate Title VII. Id. It then declined to identify a fixed class of relationships that

would make third-party reprisals unlawful, noting that “firing a close family member” would almost

always meet the standard, while “inflicting a milder reprisal on a mere acquaintance would almost

never do so.” Id.

While associational discrimination may trigger Title VII liability in hostile work environment

cases, it does not do so here. Jackson premises her employer liability on her status as a bystander,

having allegedly heard various comments addressed to African-American employees. Doc. 47, pp.

17-25. The harassment alleged by Jackson never specifically targeted her. Indeed, she identified only

this in her EEOC charge on the unverified page: “African-American employees as a class are being

harassed, subjected to a hostile work environment, and discharged because of their race, in violation

of Title VII.” Id., at 55 Other than purported comments about her father’s Sicilian heritage and her

bi-racial nieces (which will be addressed in conjunction with her disparate treatment claim), Jackson

never alleges that these comments were directed at her. The association allegedly interfered with was

the relationship that she had with employees she supervised, which is not a familial relationship (a

claim recognized in Parr). Instead, Jackson’s complaint asserts an “uncomfortable pause,” id., at ¶63,

“conflict . . . with members of management,” id., at ¶ 65, an asserted “inability” to provide co-workers

with a “safe work environment,” id., at ¶ 79, and “disrupt[ed] relationships with the staff,” id., at ¶

80. As discussed in Thompson, these represent a “milder reprisal on a mere acquaintance.” As a

result, Title VII liability does not attach.


23

iii. Jackson is not an aggrieved person within the zone of interests.

Thompson asked a second question: Is the plaintiff an “aggrieved” person within the zone of

interests contemplated by Title VII? Thompson, 131 S. Ct. at 867. The “aggrieved person” language

is common to all Title VII claimants: The statute permits “a person claiming to be aggrieved” to file

an EEOC charge and to bring a civil action. See 42 U.S.C. §§ 2000e-5(b), (f)(1). “Aggrieved” in

Title VII allows suit “by any plaintiff with an interest ‘arguably [sought] to be protected by the

statutes,’ while excluding plaintiffs who might technically be injured in an Article III sense but whose

interests are unrelated to the statutory prohibitions in Title VII.” Id., at 870. It excludes an

“accidental victim” or someone who suffers “collateral damage.” Id.

Applying Thompson to a race-based hostile work environment claim brought by a white

employee, a district court in this circuit found that the plaintiff’s interests were not those Title VII

sought to protect and that she was not an “aggrieved” person under Title VII. See Cochran v. Five

Points Temporaries, LLC, No. 2:10-CV-3522-SLB, 2012 WL 5492597 *3 (N.D. Ala. Sept. 28, 2012)

(Memorandum Opinion). There, the plaintiff asserted that an owner and other employees of the

defendant made racially derogatory remarks in reference to her African-American co-workers and that

an owner instituted racially discriminatory placement practices. Id., at *2. The plaintiff’s complaint

asserted that she was “personally offended by and opposed” these acts. Id.

The Court classified the plaintiff as an “accidental” victim who never alleged that the

employer “took any discriminatory action against its African-American employees with the intent to

affect her.” Id., at *5. She was a mere bystander to whom the employer directed no discriminatory

or harassing conduct. Id. In addition to analyzing Thompson, the Court found that Eleventh Circuit

precedent was consistent with this result since the appellate court “has held that third parties or


3

In Mayfield v. Vilsack, Appeal No. 0120100735, 2011 WL 3647299 (EEOC Aug. 8, 2011)(Decision), the EEOC refused to recognize a claim for hostile environment based on sexualharassment of the complainant’s subordinates. The Agency explained the “Complainant lacksstanding to pursue redress for any alleged sex based harassment experienced by her subordinatesbecause she did not suffer harm or loss with respect to a term, condition or privilege of employmentas a result of the alleged conduct.” Id., at *2. The Agency based its decision on two reasons: (1)

severe or pervasive; and (2) the actions alleged were not based onthe actions were not sufficiently her sex. Id.

24

bystanders affected by workplace discrimination only have standing under Title VII when the

discrimination is based on an associational relationship.” Id.

Whether under discussion of the associational discrimination case law or of the zone of

interests test, Jackson lacks standing to bring claims of race-based discrimination. She has no familial

or similarly close ties to her employees, and as a white woman, any racially questionable conduct was

not directed to her. She was a bystander outside the zone of interests for a race-based hostile work

environment claim. As in Cochran, a claim for discrimination should be limited to situations where

there has been associational discrimination or loss of a specific benefit or opportunity. Mere offense

to discrimination, in the form of harassment or otherwise, directed to another is not sufficient to give

a person standing to seek relief for the another’s injuries. 3

Jackson’s race-based disparate treatment claims also fail. She premises that claim on the

allegations that her “father is Sicilian, with an extremely dark complexion” who “throughout her life

. . .has been mistaken for African-American”; that her “two nieces . . . are biracial, as their father is

African American”; and that the defendants engaged in “retaliatory discrimination” against her. Doc.

47, ¶ 223.

The McDonnell Douglas test for disparate treatment requires a plaintiff to show that (1) she


25

is a member of a protected class; (2) she was subjected to an adverse employment decision; (3) her

employer treated similarly situated employees outside of plaintiff’s protected class more favorably;

and 4) she was qualified. Rice-Lamar v. City of Ft. Lauderdale, Fla., 232 F.3d 836, 842-43 (11th Cir.

2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817 (1973)); see also

Knight v. Baptist Hosp. of Miami, 330 F.3d 1313, 1316 (11th Cir. 2003) (stating third prong as

requiring showing that “[her] employer treated similarly situated employees outside [her]

classification more favorably. . . .”). Jackson has not claimed that similarly situated black employees

received more favorable treatment, so her disparate treatment claims under Section 1981 and Title

VII should be dismissed.

Despite the fact that Jackson is the daughter of a Sicilian and the aunt of biracial nieces,

Jackson is not a member of a protected class. Taken as true in the context of a Rule 12(b)(6) motion,

Jackson’s own allegations suggest that the she (as a white employee) received much more favorable

treatment than employees of another race, thereby eviscerating any showing on the third prong. And

any theory of associational discrimination just does not work when the claim is that you – personally

– have been discriminated against. This claim fails.

iv. Counts 6 and 7 Should be Dismissed

Counts six and seven of the second amended complaint assert race-based claims under 42

U.S.C. §1981 premised, respectively, on hostile work environment and disparate treatment. Doc 47,

pp. 40-43. Both claims apparently rely on the “racial discrimination in the workplace” factual

allegations contained earlier in that complaint. Id., at 17-22. In those general allegations, Jackson

purports to describe this conduct directed toward her African-American co-workers:� Paula Deen made racially derogatory remarks about servers at her brother’swedding, id., at ¶¶ 61-63;


26

� African-American job applicants were held to different, more stringentstandards, and that white employees were held to less stringent standards atthe workplace, which made her “frequently [come] into conflict with . . .members of upper management,” id., at ¶ 65;� African-American employees could not use the front door or the customers’bathrooms, id., at ¶¶ 66-67;� African-American employees could not be stationed at the front of therestaurant, and when there was an African-American hostess, Hiers“complained” and fired the hostess afer “being falsely accused of stealing awhite customer’s purse,” id., at ¶¶ 68-70;� Defendant Hiers used “vulgar and obscene racial statements,” as did KarlSchumacher, id., at ¶¶ 71-72; and� The general manager of the Lady & Sons referred to African-Americankitchen staff as “monkeys,” which led to “personnel management issues”among Jackson’s staff at Uncle Bubba’s and punishment – albeit reluctantlyimposed – on the manager of the Lady & Sons, id., at ¶¶74-77.

Doc 47, pp. 17-21.

Jackson’s general allegations then (twice) assert this comment made to her:� Hiers mistook Jackson’s father, a dark-complected Sicilian, for an African-American, described him with a racial epithet, and then asked about her“white skin.” Doc 47, ¶¶ 58, 73.

Jackson also complains (twice) that she is especially sensitive to racial remarks because her two

nieces are biracial (African-American and white). Id., at ¶¶ 59, 78. In the latter of the two niece-based

assertions, Jackson maintains this: “Ms. Jackson, who has nieces who are bi-racial, was personally

offended by Bubba Hiers’ racially discriminatory acts and statements towards the African-American

staff.” Id., at ¶78.

Count 6, the Section1981 race-based hostile work environment claim, contends that the

defendants’ actions “to harass and perpetuate harassment against Ms. Jackson denied her the rights


27

enjoyed by her black, African-American counterparts to make and enforce her contract of employment

and to have the full and equal benefit of all laws as is enjoyed by black, African-American citizens

. . . because of her race, white, Caucasian.” Doc 47, p. 40, ¶171. Meanwhile, count 7, the §1981 race-

based disparate treatment claim, cites Jackson’s Sicilian father and bi-racial nieces, id., at ¶177; it also

contends that she “repeatedly opposed discrimination” but that the defendants’ “discriminatory

harassment on the basis of race and retaliatory discrimination” deprived her of “harmonious working

relationships with her African-American subordinates,” id. Count 7 concludes that defendants

“denied Ms. Jackson the right to work free from racial harassment and retaliation and to otherwise

make, enforce, and enjoy the benefits of her contract of employment and to have the full and equal

benefit of all laws without the burden and injury caused by Defendants’ racial harassment and

discrimination. . . .” Id., at ¶178.

“There is nothing in section 1981's language that Congress meant to stretch standing to the

limits of Article III.” Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289, 303 (7th Cir. 2000);

accord Fair Emp. Council of Greater Washington, Inc. v. BMC, 28 F.3d 1268, 1278-79 (D.C. Cir.

1994); cf. Mackey v. Nationwide Ins. Co., 724 F.2d 419, 421-22 (4th Cir. 1984) (declining to confer

§1981 standing to African-American salesperson who claimed that allegedly discriminatory refusal

to insure houses in predominantly black neighborhood deprived him of his right to sell property

insurance to African-American friends and acquaintances since aggrieved homeowners, the direct

victims, were best suited to challenging the practice). In both counts 6 and 7, Jackson seeks only to

vindicate the rights of others, subjecting these counts to dismissal.

a. Count six

It is important to note that Jackson’s count 6 never makes a claim of associational


28

discrimination. Count 7, in contrast, makes these types of allegations, Doc 47, ¶177-178, as do the

two Title VII-based racial discrimination counts, id., at ¶¶216, 223.

Instead, count 6 asserts that the defendants’ purported harassment deprived Jackson of rights

enjoyed by her African-American counterparts. Doc 47, p. 40, ¶171. To plead a §1981 hostile work

environment claim, a plaintiff must allege that

(1) he belongs to a protected group; (2) he was subjected to unwelcome harassment;(3) the harassment was based on his membership in the protected group; (4) it wassevere or pervasive enough to alter the terms and conditions of employment and createa hostile or abusive working environment; and (5) the employer is responsible for thatenvironment under a theory of either vicarious or direct liability.

Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010) (dismissing §1981 count where the

complaint did “not plausibly allege that he was harassed because he is Caucasian”).

These defendants first focus on the third prong: the lack of allegations that “the harassment

was based on [Jackson’s] membership in the protected group” – her race, white. Looking again to

Jackson’s allegations of “racial discrimination in the workplace,” it is clear that she suffered no

harassment based upon her race (white). Her second amended complaint concedes as much,

specifically pleading that white employees received far more beneficial treatment in the workplace.

Doc 47, pp. 17-22, ¶¶61-63, 65-72, 74-77. A court “cannot treat all incidents of harassment of

African-Americans as contributing to a hostile work environment; rather, only harassment that was

directed toward Plaintiffs themselves or toward others who associated with or advocated on behalf

of African-American employees is relevant to our analysis. . . .” Barrett, 556 F.3d at 515. Indeed,

the Eleventh Circuit has found that “not all objectionable conduct or language amounts to

discrimination under Title VII” or §1981, and “only conduct that is ‘based on’ a protected category,

such as race, may be considered in a hostile work environment analysis.” Jones v. UPS Ground


29

Freight, 683 F.3d 1283, 1297 (11th Cir. 2012). “Innocuous statements or conduct, or boorish ones

that do not relate to the [race] of the actor or of the offended party (the plaintiff), are not counted.”

Id. Jackson does not allege associational discrimination in count 6, and while she alleges a certain

amount of “conflict” arising from racial views and epithets, she never alleges that the harassment was

directed to her – with one exception.

That exception is that her father is dark-complected, allegedly leading Hiers to comment that

he looked like an African-American and asking Jackson where she “g[o]t that white skin. . . .” [¶¶58,

73] This single comment directed to Jackson does not make a claim for hostile work environment.

See Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275 (1998) (stating that “isolated

incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and

conditions of employment’” so as to sustain a hostile work environment claim). In briefing on a prior

motion to dismiss, Jackson cited the Jones case for the proposition that “it makes no difference that

[Hiers] mistakenly thought her Sicilian father is black.” Doc 37, p. 3. Jones did discuss a mistaken

racial or ethic designation applied to the plaintiff, with the comment that “I don’t care what race you

are, I trained your kind before.” Jones, 683 F.3d at 1299 (underlined emphasis in original). Jones

then observed that “a harasser’s use of epithets associated with a different ethnic or racial minority

than the plaintiff will not necessarily shield an employer from liability for a hostile work

environment.” Id. But Jones was clear: “By itself, this incident would not constitute the sort of

harassment that is actionable under the statute.” Id. at 1300 (emphasis supplied). Even if Jones

would look to this mistaken description of Jackson’s father, the single utterance – the “one notable

example” cited by Jackson Doc 47, p. 17, ¶58 – would not, by itself, constitute the sort of harassment

that is actionable under §1981.


30

Thus, even if the Court considers this comment, Jackson’s count 6 fails in that it does not

allege evidence of severe or pervasive harassment directed at her sufficient to change the terms and

conditions of her employment.

b. Count seven

Count 7 asserts a race-based §1981 claim premised on disparate treatment, and in the body

of that count, Jackson contends both that she received disparate treatment due to her father’s Sicilian

heritage and her biracial nieces and due to her opposition to discrimination – all of which deprived

her of “harmonious working relationships with her African-American subordinates.” Doc 47, pp. 41-

42, ¶177. Jackson’s complaint again fails to state a claim upon which relief can be granted.

To establish a prima facie case for disparate treatment, a plaintiff must show that “(1) she is

a member of a protected class; (2) she was subjected to adverse employment action; (3) her employer

treated similarly situated [black] employees more favorably; and (4) she was qualified to do the job.”

McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008); see also Knight v. Baptist Hosp. of

Miami, 330 F.3d 1313, 1316 (11th Cir. 2003) (per curiam) (stating third prong as requiring showing

that “[her] employer treated similarly situated employees outside [her] classification more favorably.

. . .”). As argued previously, Jackson’s allegations contend that the defendants treated white

employees more favorably, for instance: “African-American job applicants were held to different,

more stringent standards than white applicants and, once hired, white employees were held to a less

stringent standard of performance than African-American employees.” [¶65] If anything, Jackson’s

allegations do not contend that any animus was directed at her because of her race; the allegations

assert that racial animus was directed solely toward black employees. See, e.g., Floyd v. Amite Co.

School Dist., 581 F.3d 244, 250-51 (5th Cir. 2009) (affirming dismissal of §1981 claim based upon


31

associational discrimination where allegations did not reveal that employer’s animus was directed

toward members of another race, not plaintiff’s association with those members).

What of Jackson’s Sicilian father and biracial nieces? Jackson never claims that she was

treated differently from black employees, or other white employees, because of these comments.

Jackson asserts only that she “has experienced prejudice and discrimination” because her father is

dark-complected, and gave “one notable example”: Hiers’ commenting that her father appeared to

be African-American and asking her where she got her “white skin.” Doc 47, pp. 17, 21 at ¶¶58, 73

(emphasis supplied). The only fall-out she described was not wanting to say anything to her employer

about her father’s death. Id., p. 21, ¶73. Having bi-racial nieces did not subject Jackson to adverse

employment actions; by own admission, it merely made her more sensitive to racial epithets directed

to, or made about others:

[D]erogatory remarks regarding African-Americans are even more personallyoffensive to Ms. Jackson than they would be to another white citizen.

* * * * *. . .Ms. Jackson, who has nieces who are bi-racial, was personally offended by BubbaHiers’ racially discriminatory acts and statements toward the African-American staff.

Id., pp. 17, 21-22, ¶¶59, 78. But as demonstrated above, she lacks standing to pursue claims directed

toward others.

D. Jackson’s Title VII Racial Harassment Claims are Outside of the Scope of her EEOC charge

Turning from issues of standing to the EEOC charge itself, Doc. 47, pp. 54-55, Jackson’s

current claims are outside the scope of that charge. Jackson attaches her two-page charge of

discrimination to proposed second amended complaint. Id., at54-55. Under the heading

“DISCRIMINATION BASED ON (Check appropriate box(es).),” Jackson checked RACE, SEX,

RELIGION, and OTHER, specifying “Equal Pay.” Id., at 54 (emphasis in original). Under these


32

checked boxes, the form instructs the charging party to give “THE PARTICULARS” and “attach

extra sheet(s)” if “additional paper is needed.” Id. Read liberally, the “particulars” on the first page

of the charge assert gender and religious-based discrimination. Id. Other than checking a box next to

“RACE,” there is nothing about racial discrimination or harassment on the first page.

Jackson gave further “particulars” on the second page. In those “particulars,” she contended

that “African-American employees as a class are being harassed, subjected to a hostile work

environment, and discharged because of their race, in violation of Title VII. . . .” Doc 47, p. 55. The

claim then that Jackson asserts in her EEOC charge is one for class action based harassment directed

at African American employees, not a claim that she personally suffered racial harassment.

Before filing suit under Title VII, a claimant must file a charge with the EEOC. 42 U.S.C. §

2000e-5(e). “Charges shall be in writing under oath or affirmation and shall contain such information

and be in such form as the Commission requires.” 42 U.S.C. §2000(e)-5(b). Charges should contain,

among other things, “[a] clear and concise statement of the facts, including pertinent dates,

constituting the alleged unlawful employment practices,” see 29 C.F.R. §1601.12(a)(3), although it

is sufficient “when the Commission receives from the person making the charge a written statement

sufficiently precise to identify the parties, and to describe generally the action or practices complained

of . . . .” 29 C.F.R. §1601.12(b).

The only explanation of racial discrimination Jackson alleged by Jackson in her EEOC charge

is that “African-American employees as a class are being harassed, subjected to a hostile work

environment, and discharged because of their race, in violation of Title VII . . . .” Doc. 47, p. 55

However, the race-based hostile work environment claim in Jackson’s proposed second amended

complaint contends that the purported racial harassment led to an environment in which she suffered


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and that she was the victim of retaliation. Id., at 48-50. As for the race-based disparate treatment

claim in the proposed second amended complaint, Jackson asserts that her father’s Sicilian

complexion has led people to mistake him for an African-American man and that she has two nieces

who are biracial, thus subjecting her to discrimination. Id., at 50-52.

“No action alleging a violation of Title VII may be brought unless the alleged discrimination

has been made the subject of a timely-filed EEOC charge.” Alexander v. Fulton County, Georgia, 207

F.3d 1303, 1332 (11th Cir. 2000), overruled on other grounds by Manders v. Lee, 338 F.3d 1304

(11th Cir. 2003). “A plaintiff’s judicial complaint is limited by the scope of the EEOC investigation

which can reasonably be expected to grow out of the charge of discrimination.” Gregory v. Georgia

Dept. of Human Resources, 355 F.3d 1277, 1280 (11th Cir. 2004) (per curiam) (finding that despite

plaintiff’s failure to check retaliation box on EEOC charge, the facts asserted in her charge

nonetheless reasonably encompassed a retaliation claim). A plaintiff may make judicial claims that

“amplify, clarify, or more clearly focus” the allegations in the EEOC charge, but she cannot allege

new acts of discrimination. Id. at 1279-80.

The Eleventh Circuit has affirmed the grant of judgment on the pleadings on a claim that the

judicial complaint exceeded the scope of the EEOC charge based upon these facts:

When Jerome filed his EEOC charge, he alleged only the denial of a promotion.Nowhere does there appear on the charge a reference to his disparate pay claim.Jerome's only evidence for making the claim to the EEOC . . .is an EEOC chargequestionnaire on which he circled “wages” when prompted to identify the specificdiscriminatory actions he was complaining of. [But] . . .when asked to explain thesediscriminatory actions, Jerome complained only of being passed over for a promotion.Given his own explanation, merely circling “wages” on the questionnaire fell far shortof putting the EEOC on notice that Jerome was also claiming that Crestline paid itswhite employees less than its black employees. And . . . the facts relating to Jerome'spromotion claim (such as the comparative qualifications of Jerome and Schultz) donot encompass facts that would also support a disparate pay claim. . . .


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Jerome v. Marriott Resid. Inn Barcelo Crestline/AIG, 211 Fed. Appx. 844, 846-47 (11th Cir. 2006)

(per curiam; unpublished).

Similarly, in Ramon v. AT&T Broadband, 195 Fed. Appx. 860 (11th Cir. 2006) (per curiam;

unpublished), the Court found that Ramon’s counts asserting a hostile work environment and

retaliation were outside the scope of her EEOC charge and affirmed the grant of summary judgment:

Her EEOC charge stated that she was told that she was losing her bilingual payalthough she would have to continue to provide translation services. Ramon maintainsthat an inference could be made from this claim that her pay was reduced in retaliationfor her complaints to supervisors about discriminatory acts and for seeking short-termdisability leave. She argues that her hostile work environment claim can be inferredfrom her EEOC charge, because her allegations with respect to the disparity intreatment regarding her pay and disability leave and that of her coworkers indicate thather work environment was harsher, more strict, and less rewarding than theenvironment of her coworkers.

Id., at 864. In rejecting these arguments, the Court noted that a hostile work environment claim

required a plaintiff to show that “‘the workplace is permeated with ‘discriminatory intimidation,

ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim's

employment and create an abusive working environment.’” Id., at 865 (quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21, 114 S.Ct. 367 (1993)). But Ramon pointed to nothing in her charge that would

lead the EEOC to investigate a hostile work environment or to a retaliation claim; she even left the

“retaliation” box unchecked on the charge. Id., at 866.

On the unverified page of Jackson’s EEOC charge, she asserted only that “African-Americanemployees as a class are being harassed, subjected to a hostile work environment, and dischargedbecause of their race. . . .” Doc. 47, pp. 55. Jackson, who is white, was not an African-Americanemployee. Jackson did not aver that she suffered discrimination, rather, only that African Americanemployees as a class were being harassed and subjected to a hostile work environment. Her presentallegation is absent from her EEOC charge. She also did not make a retaliation claim; the retaliationbox is unchecked, and she makes no claims that she spoke out for African-American employees toher detriment. The allegations in counts 14 and 15 of her second amended complaint – i.e., that shewas retaliated against and suffered because of her association with her white father and biracial nieces


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– fall outside the scope of her EEOC charge and are subject to resolution as a matter of law. Thus,the Court should dismiss counts 14 and 15 of the second amended complaint.

G. Motion to Strike

Rule 12(f) allows a court to strike from a pleading “any redundant, immaterial, impertinent,

or scandalous matter.” Fed. R. Civ. P. 12(f). Because Jackson’s race-based claims do not survive

– whether due to standing or other concerns – the Court should strike the allegations in paragraphs

58-96 of her second amended complaint that appear under the headings “RACIAL

DISCRIMINATION IN THE WORKPLACE” and “VIOLENCE IN THE WORKPLACE.”

With the lack of sustainable claims based on these allegations, these allegations are immaterial to

Jackson’s complaint.

CONCLUSION

WHEREFORE, Defendants Earl W. “Bubba” Hiers and Uncle Bubba’s Seafood and Oyster

House, Inc., respectfully request that their Motion to Dismiss pursuant to Fed. R. Civ. Proc. 12(b)(6)

and Motion to Strike per Fed. R. Civ. Proc. 12(f) be granted.

Respectfully submitted this 18 day of December, 2012.th

/s/Thomas A. Withers THOMAS A. WITHERSGeorgia Bar No. 772250

GILLEN, WITHERS & LAKE, LLC8 East Liberty StreetSavannah, Georgia 31401Telephone: (912) 447-8400Fax: (912) [email protected]

Attorney for Mr. Earl W. Hiers andUncle Bubba’s Seafood and Oyster House, Inc.


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CERTIFICATE OF SERVICE

This is to certify that I have on this day served all the parties in this case in accordance with

the directives of the Court Notice of Electronic Filing (“NEF”) that was generated as a result of

electronic filing.

This 18th day of December, 2012.

/s/ Thomas A. Withers THOMAS A. WITHERSGeorgia Bar No. 772250

GILLEN, WITHERS & LAKE, LLC8 East Liberty StreetSavannah, Georgia 31401Telephone: (912) 447-8400Fax: (912) 629-6347

[email protected] for Mr. Earl W. Hiers andUncle Bubba’s Seafood and Oyster House, Inc.


SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION PAULA DEEN, PAULA DEEN...

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