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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DIANE NELSON, ADONIS
HEARD, and ANDRE HOGAN

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* CIVIL ACTION NO.
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* JURY TRIAL DEMANDED
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Plaintiffs,
v.
BAIN STAFFING SERVICES and
JACOBSON WAREHOUSE
COMPANY
Defendants.

COMPLAINT FOR DAMAGES
COME NOW, Plaintiff Diane Nelson (hereinafter “Nelson”), Plaintiff
Adonis Heard (hereinafter “Heard”), and Plaintiff Andre Hogan (hereinafter
“Hogan”) (collectively “Plaintiffs”), by and through undersigned counsel, and file
their Complaint for Damages against Defendant Bain Staffing Services (hereinafter
“Bain”) and Defendant Jacobson Warehouse Company (hereinafter “Jacobson”)
(collectively “Defendants”), showing the Court as follows:
I.

JURISDICTION AND VENUE
1.

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Plaintiffs invoke the jurisdiction of this court pursuant to 28 U.S.C. § 1331
and 42 U.S.C. § 2000e-5(f). Plaintiffs also invoke this court’s pendent jurisdiction
to hear their state law claims.
2.
The unlawful employment practices alleged in this Complaint were
committed within this district. In accordance with 28 U.S.C. § 1391 and 42 U.S.C.
§2000(e)-5(f), venue is appropriate in this Court.
II.

PARTIES
3.

Plaintiff Nelson is an African American female and resident of the State of
Georgia, and is subject to the jurisdiction of this Court.
4.
Plaintiff Heard is an African American male and resident of the State of
Georgia, and is subject to the jurisdiction of this Court.
5.
Plaintiff Hogan is an African American male and resident of the State of
Georgia, and is subject to the jurisdiction of this Court.
6.

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Defendant Bain is a privately-held staffing company that provides temporary
staffing assistance to clients in metro-Atlanta, Georgia. Bain is now, and at all
times relevant hereto, an employer engaged in an industry affecting commerce
within the meaning of §701(b), (g) and (h) of Title VII of the Civil Rights Act of
1964 (hereinafter “Title VII”) and has employed more than the requisite number of
persons for the requisite duration under Title VII.
7.
Bain is licensed to do business in Georgia and is subject to the jurisdiction of
this Court. Bain may be served with process via its President, Mark Bain, at 3131
Main Street, East Point, Georgia 30344.
8.
Defendant Jacobson is a supply chain management company that packages
food, beverage, and retail goods. Jacobson is now, and at all times relevant hereto,
an employer engaged in an industry affecting commerce within the meaning of
§701(b), (g) and (h) of Title VII of the Civil Rights Act of 1964 (hereinafter “Title
VII”) and has employed more than the requisite number of persons for the requisite
duration under Title VII.
9.

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Jacobson is licensed to do business in Georgia and is subject to the
jurisdiction of this Court. Jacobson may be served with process via its Registered
Agent, CT Corporation System, at 1201 Peachtree Street NE, Atlanta, Georgia
30361.
III. ADMINISTRATIVE PROCEDURES
10.
Plaintiff Nelson timely filed a charge of discrimination against Defendant
Bain Staffing with the Equal Employment Opportunity Commission (“EEOC”).
11.
The EEOC issued a Notice of Right to Sue Defendant Bain on November 18,
2014 entitling her to commence an action within ninety (90) days of receipt of that
notice.
12.
This action has been commenced within ninety (90) days of receipt of the
Notice of Right to Sue Defendant Bain.
13.
Plaintiff Nelson timely filed a charge of discrimination against Defendant
Jacobson Warehouse Company with the EEOC.
14.
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The EEOC issued a Notice of Right to Sue Defendant Jacobson on
November 18, 2014 entitling her to commence an action within ninety (90) days of
receipt of that notice.
IV.

FACTUAL ALLEGATIONS
15.

On January 20, 2014, Plaintiff Nelson, an African-American woman, filled
out an application for employment with Bain. Upon turning in her application,
Plaintiff was immediately informed that she would be called later that day to be
staffed for an assembly line candy packager position at Jacobson. Jacobson is a
supply chain management company that packages food, beverage, and retail goods.
16.
Similarly, in early 2014 Plaintiffs Heard and Hogan applied for a position
with Bain and was told that he would be staffed for an assembly line candy
packager position at Jacobson.
17.
On January 21, 2014, Plaintiff Nelson called Bain about the position because
she did not receive a call the prior day. Plaintiff was instructed by Bain to report to
Jacobson’s production facility at Old Dixie Road, Forest Park the following

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morning at 6:30 a.m. Plaintiffs Heard and Hogan were also told to report to the
same Jacobson facility at 6:30 a.m.
18.
On January 22, 2014, upon Plaintiffs’ arrival at Jacobson’s production
facility, they noticed that the room was filled with Hispanic-Americans and a few
African-Americans. Plaintiffs and the other African-Americans were instructed to
leave and return at 3:30 p.m. that same day.
19.
As instructed, Plaintiffs returned to Jacobson at 3:30 p.m. and were placed
on a mostly African-American shift. Plaintiffs were then taken to an assembly line
that included all African-American employees and one Hispanic worker. The
employees were told to begin work, untrained.
20.
After working for approximately 2 hours on Jacobson’s assembly line,
Plaintiffs and everyone on their assembly line were instructed to meet Bain’s
representative, Christian, in the break-room.
21.
Once the workers were gathered in the break-room, Christian apologized to
the mostly African-American workers for sending them home earlier that day.
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22.
Christian then proceeded to tell the workers “I’m sorry, but the Company
told me to only hire Mexicans.” This reference to the Company referred to both
Defendants Bain and Jacobson. Christian apologized again and stated “I take my
orders from them.” Plaintiffs and the other African-American workers were then
fired and sent home.
23.
The Hispanic-American worker was told to stay.
24.
Plaintiff Nelson contacted Bain the next day, and reported that Christian had
fired them because, according to Christian, he was told him to “only hire
Mexicans.” Nelson informed Bain that there were several witnesses who could
and would confirm that Christian fired her and the other African American
employees because they were not Mexicans.
25.
Bain responded to Nelson’s Complaint by informing her that they didn’t
believe her and hanging up the telephone.
26.

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Nelson continued calling Bain for additional work, but her calls went
unanswered, and went directly to voicemail. Nelson received no response to the
voice messages she left and never received additional work from Bain.
27.
Despite Nelson’s repeated requests, Bain has also refused to compensate her
for the hours worked at Jacobson.
28.
After being sent home on January 22, 2014, Plaintiffs Heard and Hogan
returned to Jacobson’s facility the following morning in hope of being allowed to
work the 6:30 a.m. shift.
29.
Upon arrival, Heard and Hogan saw that their names were included on the
list of people who would be working that day. They therefore waited with a group
of other workers for the shift to begin. At the time the shift was to begin, a
Jacobson employee came out and surveyed Plaintiffs Heard and Hogan and the
others waiting to work. The Jacobson employee then selected only Hispanic
employees from the group and informed them that they would be permitted to
work. The Jacobson employee then sent Heard and Hogan, as well as every other
African American present, away.
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30.
Plaintiffs Heard and Hogan returned to the Jacobson facility each morning
for approximately a week in the hope of being allowed to work. On each occasion
the same process occurred. A Jacobson employee would select only Hispanic
people to work and would send all African Americans away.
31.
As a company, Bain is made up of almost exclusively Hispanic employees.
V.

CLAIMS FOR RELIEF

Count One: Discrimination in Violation of Title VII and 42 U.S.C. § 1981
Against Defendant Bain and Defendant Jacobson
(Plaintiff Nelson)
32.
Plaintiff Nelson re-alleges the preceding paragraphs as if set forth fully
herein.
33.
Defendant Bain and Defendant Jacobson were both Nelson’s employer
within the meaning of 42 U.S.C. § 2000e(b) at all times material to this Complaint.
Furthermore, Nelson satisfied all administrative procedural requirements before
filing the instant action. Specifically, Plaintiff Nelson filed charges of
discrimination with the EEOC, received a Notice of Right to Sue letter as to each
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Defendant, and has filed this action within 90 days of receiving that Notice or
Right to Sue.
34.
Defendants’ act of firing Ms. Nelson, an African-American woman, because
she is not “Mexican” constitutes race and national origin discrimination in
violation of Title VII and 42 U.S.C. §1981 .
35.
Defendants continued to employ only Hispanic workers and sent all AfricanAmerican workers home simply because those African-American workers were not
“Mexicans.” Consequently, Defendants treated others outside Ms. Nelson’s
protected class more favorably.
36.
As a result of Defendants’ unlawful actions, Ms. Nelson has suffered
emotional distress, inconvenience, loss of income and benefits, humiliation, and
other indignities compensable under Title VII and §1981, for which Defendant is
liable.
Count Two: Retaliation in Violation of Title VII 42 U.S.C. § 1981 Against
Defendant Bain
(Plaintiff Nelson)
37.
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Plaintiff Nelson re-alleges the preceding paragraphs as if fully set forth
herein.
38.
The employment relationship between Plaintiff Nelson and Defendant Bain
gives rise to a cause of action where race discrimination is alleged to be the
causative agent of the adverse actions taken against Plaintiff Nelson within the
scope of the employment relationship.
39.
Defendant Bain discriminated against Nelson based upon her race and
national origin by terminating her employment because she is not “Mexican” and
because Christian’s hiring of Ms. Nelson was in derogation of Bain’s directive to
“only hire Mexicans.”
40.
Once Plaintiff complained about Bain’s racist conduct, Bain refused to hire
her for any other position, and refused to pay her for work she completed before
her discriminatory termination.
41.
As a result of Bain’s unlawful retaliation, Ms. Nelson has suffered emotional
distress, inconvenience, loss of income and benefits, humiliation, and other
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indignities compensable under Title VII and 42 U.S.C. § 1981, for which Bain is
liable.
Count Three: Discrimination in Violation of 42 U.S.C. § 1981 Against
Defendant Jacobson
(Plaintiff Heard and Plaintiff Hogan)
42.
Plaintiffs Heard and Hogan re-allege the preceding paragraphs as if set forth
fully herein.
43.
Defendants’ act of firing Plaintiffs Heard and Hogan, both of whom are
African-American, because they are not “Mexican” constitutes race discrimination
in violation of 42 U.S.C. §1981.
44.
Defendants continued to employ only Hispanic workers and sent all AfricanAmerican workers home simply because those African-American workers were not
“Mexicans.” Consequently, Defendants treated African Americans such as
Plaintiffs Heard and Hogan less favorably than other races.
45.
As a result of Defendants’ unlawful actions, Plaintiffs Heard and Hogan
have suffered emotional distress, inconvenience, loss of income and benefits,
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humiliation, and other indignities compensable under 42 U.S.C. §1981, for which
Defendants are liable.
Count Four: Discrimination in Violation 42 U.S.C. § 1981 Against Defendant
Bain
(Plaintiff Heard and Plaintiff Hogan)
46.
Plaintiffs Heard and Hogan re-allege the preceding paragraphs as if set forth
fully herein.
47.
Defendant Bain’s act of firing Plaintiffs Heard and Hogan, who are both
African-American, because they are not “Mexican” constitutes race discrimination
in violation of 42 U.S.C. §1981.
48.
Defendant Bain continued to employ only Hispanic workers and sent all
African-American workers home simply because those African-American workers
were not “Mexicans.” Consequently, Defendant Bain treated African Americans
such as Plaintiffs Heard and Hogan less favorably than other races.
49.
As a result of Defendant Bain’s unlawful actions, Plaintiffs Heard and
Hogan have suffered emotional distress, inconvenience, loss of income and
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benefits, humiliation, and other indignities compensable under 42 U.S.C. §1981,
for which Defendant Bain is liable.
Count Five: Attorneys’ Fees
50.
Plaintiffs re-allege the preceding paragraphs as if fully set forth herein.
51.
Plaintiffs are entitled to an award of attorney’s fees and expenses of
litigation on each and every cause of action alleged herein, as provided by statute
and because Defendants have acted in bad faith, been stubbornly litigious, and
caused Plaintiffs unnecessary trouble and expense.
Count Six: Punitive Damages
52.
Plaintiffs re-allege the preceding paragraphs as if set forth fully herein.
53.
The foregoing acts of Defendants were intentional and humiliating, and
evince a conscious disregard for the circumstances and rights of others, and a
specific intent to cause harm. Plaintiffs are entitled to recover from Defendants, in
addition to compensatory damages, an award of punitive damages under the law of
Georgia to deter Defendants from repeating such wrongful acts.
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WHEREFORE, Plaintiffs request as follows:
(a)

General damages for mental and emotional suffering caused by

Defendants’ misconduct;
(b)

Punitive damages based on Defendants’ willful, malicious,

intentional, and deliberate acts, including ratification, condonation and approval of
said acts;
(c)

Special damages and/or liquidated damages for lost wages and

benefits and prejudgment interest thereon;
(d)

Reasonable attorney’s fees and expenses of litigation;

(e)

Trial by jury as to all issues;

(f)

Prejudgment interest at the rate allowed by law;

(g)

Declaratory relief to the effect that Defendants have violated

Plaintiffs’ statutory rights;
(h)

Injunctive relief of reinstatement, or front pay in lieu thereof, and

prohibiting Defendants from further unlawful conduct of the type described herein;
and
(i)

All other relief to which they may be entitled.

Respectfully submitted the 11th day of February 2015.
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MOLDEN & HOLLEY, LLC
s/ Regina S. Molden
Regina S. Molden
Georgia Bar No. 515454
Nicholas D. Bedford
Georgia Bar No. 940659
Peachtree Center – Harris Tower
233 Peachtree Street, NE
Suite 1245
Atlanta, GA 30303
Phone: (404) 324-4500
Fax: (404) 324-4501
Email: rmolden@moldenholley.com
Email: nbedford@moldenholley.com
Attorneys for Plaintiffs

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CERTIFICATE OF COMPLIANCE
The undersigned counsel hereby certifies that Plaintiff’s Complaint for
Damages complies with the type-volume limitations set forth in Rule 5.1 of the Local
Rules of the Northern District of Georgia. Counsel hereby states that Plaintiff’s
Complaint for Damages has been typed in Times New Roman 14 point.

This 11th day of February, 2015.

/s/ Regina S. Molden
Regina S. Molden
Georgia Bar No. 515454

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