Case 1:16-cv-04506-WSD Document 37 Filed 07/25/17 Page 1 of 50

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CELESLIE HENLEY and ERNEST
COLBERT, JR.,
Plaintiffs,
v.

1:16-cv-4506-WSD

TURNER BROADCASTING
SYSTEM, INC., TIME WARNER
INC., CABLE NEWS NETWORK,
INC., and TURNER SERVICES,
INC.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Defendants Turner Broadcasting System,
Inc. (“TBS”), Time Warner Inc. (“Time Warner”), Cable News Network, Inc.
(“CNN”), and Turner Services, Inc.’s (“TS”) (together, “Defendants”) Motion to
Dismiss, Strike, and/or for More Definite Statement of Plaintiffs’ Complaint [17]
(“Motion to Dismiss”), Plaintiffs Celeslie Henley (“Henley”) and Ernest Colbert,
Jr.’s (“Colbert”) (together, “Plaintiffs”) Motion for Leave to File Surreply in
Opposition to Defendants’ Reply in Support of its [sic] Motion to Dismiss [34]
(“Surreply Motion”), and Plaintiffs’ Motion for Leave to Amend the Complaint to
Voluntarily Withdraw its [sic] Original Complaint [27] (“Motion to Amend”).

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I.

BACKGROUND
A.

Henley’s Allegations

Plaintiff Henley is an African-American woman. (Compl. ¶ 9). She is
forty-four years old and worked for seven years as an Executive Administrative
Assistant at CNN. (Compl. ¶¶ 9, 59, 68).1 Before she took maternity leave in
March 2013, Henley received favorable performance reviews and a bonus for her
work ethic. (Compl. ¶¶ 59, 70). When she returned from maternity leave, she
“quickly realized that the work environment changed for the worst.” (Compl.
¶ 59). Her workload increased and her requests for additional support staff were
denied. (Compl. ¶¶ 43, 59). She “was required to work 12 to 13 hour shifts and
remain on-call . . . while other Caucasian executive assistants, in the same
department, were only required to work from 8:00A.M. to 4:00P.M.” (Compl.
¶¶ 43, 69).2 She was “written up” for failing to timely file an expense report,
which, she alleges, should have been handled by others while she was on maternity

1

Although Henley repeatedly alleges she worked for CNN, she also suggests
that she worked in the “Cartoon Network Division of Turner.” (Compl. ¶¶ 59-60).
It appears that the Cartoon Network and CNN are separate entities owned by TBS.
(See Compl. ¶¶ 11-12).
2
Henley alleges that these work requirements “were not detailed in her job
description.” (Compl. ¶ 69).
2

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leave. (Compl. ¶¶ 43, 59, 71). She also was written up for failing to file a credit
card report on time. (Compl. ¶ 71).
On January 9, 2014, Henley emailed Renee White (“White”), the Human
Resource Director, complaining about “the discrimination and mistreatment” she
received from her managers, including Stuart Snyder, the President and COO of
CNN’s AYAKAM division. (Compl. ¶¶ 9, 35, 59).3 Plaintiffs do not offer further
information about Henley’s internal complaint. White met with Henley, told her
that she would investigate Henley’s claims, and placed her on administrative leave
until the investigation was concluded. (Compl. ¶ 59). On January 13, 2014, White
told Henley that she was unable to substantiate Henley’s allegations and that there
was “no disparity in the Cartoon Networks employees’ salaries across Turner.”
(Compl. ¶ 59). White said she would speak with “the Legal department” the next
day “to determine a resolution for Ms. Henley’s concerns.” (Compl. ¶ 59).
On January 14, 2014, White called Henley and told her she was being
terminated “for failing to file a timely expense report which led to the assessment
3

Plaintiff does not allege the purpose, function or scope of the “AYAKAM”
division, or how many employees and managers are within it. To the extent
AYAKAM refers to TBS’s Animation, Young Adults & Kids Media division, the
Complaint does not allege where it falls within CNN’s corporate structure, if it
does at all. See http://www.marketwired.com/press-release/turner-broadcastingsystem-incs-stuart-snyder-deliver-kids-animation-keynote-banff-1628064.htm.
3

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of fees.” (Compl. ¶ 59). White explained that Henley’s termination was unrelated
to her discrimination claims “because [White’s] investigation had been closed.”
(Compl. ¶ 59). Stuart Snyder also was on the call. (Compl. ¶ 59). After the call,
Henley’s work telephone was disabled, she was barred from returning to the office
to pack her personal belongings, and she was placed on Turner’s “No Rehire
Code” list. (Compl. ¶ 59). Henley claims she was discriminated against based on
her race, sex and pregnancy, and was terminated in retaliation for her complaint to
White. (Compl. ¶ 9).
B.

Colbert’s Allegations

Colbert is African-American and forty-four years old. (Compl. ¶ 10). He
has a marketing degree from the University of West Georgia, and has worked for
TBS for approximately twenty years. (Compl. ¶ 10). In 2007, Henley was
promoted to Manager but was not given a “formal job description” and was
required to perform Senior Manager work on a salary below his “pay grade.”
(Compl. ¶¶ 36, 42, 57). He alleges he was paid “less than Caucasian employees in
the same pay grade performing the same job.” (Compl. ¶¶ 10, 42). Colbert claims
he requested, but was denied, a promotion or pay increase while “a similarly
situated Caucasian woman in his department” received several pay grade increases.
(Compl. ¶¶ 39, 67; see Compl. ¶ 58 (“The Caucasian who held his position
4

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previously was promoted to a job grade several levels above Mr. Colbert while
performing the exact same job duties as Mr. Colbert.”)). Although Colbert was
told in 2007 that he “would soon be promoted to Senior Manager,” he was not
promoted to that position until August 2016. (Compl. ¶ 66). He claims there was
no “justification and/or reasoning” for this delay, and that he “is still under paid
[sic] in comparison to the Caucasian Senior Managers” in the Programming and
Marketing divisions where he and five other African-Americans work. (Compl.
¶¶ 42, 58, 66).4 Henley alleges that, until he was promoted to Senior Manager,
TBS failed to maintain his personnel file and that this “nullified” his “years
of . . . positive performance evaluations.” (Compl. ¶¶ 10, 36, 42, 57).
C.

Plaintiffs’ Class-Wide Allegations

Plaintiffs allege that Defendants have engaged in a pattern and practice of
racial discrimination in performance evaluations, compensation, promotions, and
terminations. (Compl. ¶¶ 6, 26).

4

Of the five other African-Americans in the Programming and Marketing
divisions, one is a Vice President, one is a Director, one is a Senior Manager, and
one is a Manager. (Compl. ¶ 66). Plaintiffs do not identify the position of the fifth
African-American.
5

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1.

Performance Evaluations

Plaintiffs allege that “[TBS] and/or CNN . . . maintain[] written and
unwritten policies and practices” that discriminate against African-American
employees in their performance evaluations. (Compl. ¶ 26).5 Specifically,
Plaintiffs allege that “performance evaluations are conducted by managers
exercising undue discretion with little or no oversight” and that this results in
“biased and inconsistent [performance] determinations.” (Compl. ¶¶ 3, 26, 32).
Plaintiffs rely on an “HR Reporting and Analytics” report from July 22, 2013
(the “HR Report”), which shows that, from 2010 to the first quarter of 2013,
employees “of color” received a lower performance rating than the average
employee in TBS’s News, Finance & Accounting, Legal, Public Relations, and
Strategy divisions. ([1.2] at 1, 3, 7-8, 10-11; Compl. ¶ 33).6 Plaintiffs claim that
African-American employees are harmed because their performance ratings impact
their compensation and promotion opportunities.

5

Plaintiffs, throughout their Complaint, refer generally to “[TBS] and/or
CNN” without specifying which allegations refer to which Defendant. The
Complaint does not offer any specific allegations against Defendants Time Warner
or TS.
6
The HR Report does not define an employee “of color” but a “person of
color” is commonly understood to mean “a person who is not white or of European
parentage.” https://en.oxforddictionaries.com/definition/us/person_of_color.
6

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2.

Compensation

Plaintiffs allege that “[TBS] and/or CNN maintains a pattern and practice of
paying African-American employees less than similarly-situated Caucasian
employees.” (Compl. ¶ 39). They allege that TBS and/or CNN consider a “variety
of factors” in determining employee compensation, “including the employee’s pay
grade, the employee’s position within the salary range of that grade, and the
employee’s score.” (Compl. ¶ 38). They claim Defendants’ compensation system
allows employees in the same “job grade”7 to be paid differently, and allows
employees in lower job grades to be paid more than employees in higher job
grades. (Compl. ¶ 40). Plaintiffs claim that this approach permits “unduly
discretionary decisions, resulting in unequal compensation” for African-American
employees. (Compl. ¶¶ 26, 38). Plaintiffs rely on the HR Report, which shows
that, from 2010 to the first quarter of 2013, employees of color were paid less than
the average employee in TBS’s Sports, Finance & Accounting, and Legal
divisions. ([1.2] at 2-3, 7, 10; Compl. ¶¶ 39, 44). Plaintiffs also allege that white
employees, but not an African-American employee, received a bonus for their
contribution to a $20 million work project. (Compl. ¶ 29). After the project, the
7

Plaintiffs do not define or describe the term, “job grade,” and it is unclear
whether the term is synonymous with “pay grade.”
7

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African-American employee was passed over for promotion in favor of “her
Caucasian counterpart.” (Compl. ¶ 29).
3.

Promotions

Plaintiffs allege that, under Turner and/or CNN’s “policies and practices,”
some positions are not posted publicly and are filled through management
nominations or other closed forms of “sourcing.” (Compl. ¶¶ 26, 52). Supervisors
are allowed to “essentially handpick candidates through word of mouth for
available positions and make promotion decisions on the basis of subjective
criteria.” (Compl. ¶¶ 26, 45). Plaintiffs claim this “prevents qualified
African-Americans from competing equally for positions.” (Compl. ¶ 45).
Where a vacancy is posted, Plaintiffs allege that Turner and/or CNN use a
“targeted selection procedure” and that this discriminates against
African-Americans. (Compl. ¶¶ 48, 52). Under this procedure, supervisors
conduct “multiple one-on-one interviews” with candidates, ask them “scripted
questions,” and rate them on “objective criteria” known as “preferred
qualifications.” (Compl. ¶¶ 48-51). Plaintiffs allege that these “preferred
qualifications,” which are not defined in the Complaint, “mask the prejudicial
preference” of the supervisors and that supervisors “essentially are allowed to
pre-select candidates before positions are posted.” (Compl. ¶¶ 48, 50-51; see
8

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Compl. ¶ 61 (“[A] formal interview process may be a sham to disguise the fact that
a candidate has been pre-selected.”)). Plaintiffs allege that “Defendants” promoted
a white candidate, who “met some of the preferred qualifications,” to a “Chief
Human Resource position,” even though an African-American applicant had
worked for Defendants longer, had undergraduate, M.B.A. and Ph.D. degrees, and
had previously supervised the white candidate. (Compl. ¶ 5).
Plaintiffs rely on the HR Report, which shows that, from 2010 to the first
quarter of 2013, employees of color had lower promotion rates than the average
employee in TBS’s News, Legal, Public Relations, and Media divisions. ([1.2] at
1, 7-9). The HR Report also shows that employees of color were underrepresented
in Manager, Director, Vice President (“VP”) and Senior Vice President (“SVP”)
positions (together, “Senior Positions”) in TBS’s News, Finance & Accounting,
AYAKAM, Legal, and Strategy divisions, compared to the total number of
employees of color in those divisions. ([1.2]; Compl. ¶¶ 46-47). Employees of
color generally were underrepresented in Senior Positions in TBS’s Sports,
Entertainment, International, Public Relations, Media, and Research divisions,
although they were adequately represented or overrepresented in at least one
Senior Position in each division. ([1.2]). Plaintiffs claim that senior

9

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African-American employees are concentrated in divisions that are less influential
and less profitable than others. (Compl. ¶ 5).
Plaintiffs allege that white employees often “skip one or two position levels
when promoted” while African-American employees “are simply promoted to the
lowest next level.” (Compl. ¶ 5). Plaintiffs further allege that, unlike white
employees, African-American employees often are required, without a promotion
or a pay increase, to assume the responsibilities of more senior positions. (Compl.
¶ 5).
4.

Involuntary Terminations

Plaintiffs allege that “African-American employees at [TBS] and CNN are
involuntarily terminated at a much higher rate than Caucasian employees.”
(Compl. ¶ 5). Plaintiffs again rely on the HR Report, which shows that, from
2010 to the first quarter of 2013, employees of color were terminated at a higher
rate than the average employee in TBS’s Sports, Finance & Accounting, and
AYAKAM divisions. ([1.2] at 2-4).8

8

In TBS’s News division, males of color were terminated at a higher rate than
the average male, but females of color were terminated at a lower rate than the
average female. ([1.2] at 1). In TBS’s Entertainment division, males of color were
terminated at a higher rate, but female employees of color were terminated at a
lower rate, than the average employee. ([1.2] at 5).
10

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D.

Procedural History

On December 6, 2016, Plaintiffs filed their Complaint [1], asserting
discrimination claims on behalf of themselves and the following putative class:
All African-American persons employed by Defendants in salaried
positions and mid-level managerial positions (specifically, managerial
positions inferior to the Director, Vice President, Senior Vice
President positions) in the United States at any time from April of
1997, to the present, who are subject to Defendants’ employment and
human resources policies and practices, including, but not limited to,
current or former salaried employees of Turner Broadcasting Systems,
including Turner’s subsidiaries, Time Warner, Inc. and Turner
Services, Inc., and who have been, continue to be, or may in the future
be, adversely affected by Defendants’ racially discriminatory
employment policies and practices (“the Class”).
(Compl. ¶ 17). Count 1 asserts that, in violation of 42 U.S.C. § 1981, Defendants
engaged in a “pattern and practice” of intentional race discrimination against
Plaintiffs and the Class by denying them equal treatment in promotions,
compensation, performance evaluations, and the “terms and conditions of
employment.” (Compl. ¶ 75). Count 2 asserts that Defendants intentionally
discriminated against Plaintiffs, in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), by (1) declining to promote Colbert to Senior Manager until
August 2016, (2) paying Plaintiffs less than similarly situated white employees,
(3) denying Plaintiffs “equal terms and conditions of employment,” and
(4) retaliating against Henley for the discrimination complaint made to White.
11

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(Compl. ¶ 78). Count 3 asserts that Defendants’ “policies and practices” on
compensation, promotions, and performance evaluations disparately impact
African-American employees, in violation of Title VII. (Compl. ¶¶ 80-81).
On February 7, 2017, Defendants filed their Motion to Dismiss Plaintiffs’
Complaint. On March 23, 2017, Plaintiffs filed their Motion to Amend, seeking
leave to amend their Complaint to “clarify” their allegations and assert “new
facts.” ([27] at 2). Defendants oppose Plaintiffs’ Motion to Amend on the grounds
that the proposed Amended Complaint [27.1] (“Proposed Amended Complaint”)
does not state viable claims and an amendment would be futile. ([33]).9 On
May 1, 2017, Plaintiffs requested leave to file a surreply in opposition to
Defendants’ Motion to Dismiss. ([34]).
II.

PLAINTIFFS’ SURREPLY MOTION
Plaintiffs seek leave to file a surreply in opposition to Defendants’ Motion to

Dismiss. “The Court normally does not permit sur-replies.” Maid of the Mist
Corp. v. Alcatraz Media, LLC, No. 1:09-cv-1543, 2009 WL 10670645, at *2 n.4
(N.D. Ga. Sept. 3, 2009). “Neither the Federal Rules of Civil Procedure nor this
Court’s Local Rules authorize the filing of surreplies as a matter of right or in the

9

The Proposed Amended Complaint contains minor changes to the original
Complaint and provides limited, or inconsequential, additional allegations of fact.
12

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ordinary course of litigation.” Willoughby v. Youth Villages, Inc., 219 F. Supp. 3d
1263, 1273 n.23 (N.D. Ga. 2016). “Such filings will typically be accepted by the
Court only in unusual circumstances, such as where a movant raises new
arguments or facts in a reply brief, or where a party wishes to inform the Court of a
new decision or rule implicating the motion under review.” Roelle v. Cobb Cty.
Sch. Dist., No. 1:13-cv-3045, 2014 WL 4457235, at *9 (N.D. Ga. Sept. 10, 2014).
“[T]o allow such surreplies as a regular practice would put the court in the position
of refereeing an endless volley of briefs.” Fedrick v. Mercedes-Benz USA, LLC,
366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005).
Plaintiffs seek to file a surreply “to correct and address . . . false and
misleading representations” in Defendants’ reply brief, and to respond to
arguments allegedly presented for the first time in Defendants’ reply. ([34] at 2).
Plaintiffs’ motion does not specifically identify Defendants’ new arguments and
“false and misleading representations.” Defendants’ reply, however, squarely
responds to the arguments in Plaintiffs’ response brief, and does not advance new
arguments. See Roelle, 2014 WL 4457235, at *9 (“If the new arguments raised in
a reply brief directly address arguments raised in the non-movant's response, no
surreply is warranted.”). Plaintiffs have not identified “unusual circumstances” in
this case, id., and they “fail[] to demonstrate that a particular argument or
13

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representation made by [Defendants] in [their] reply brief[] warrants the filing of a
surreply,” Fedrick, 366 F. Supp. 2d at 1197-98. Plaintiffs’ Surreply Motion is
denied.10
III.

DEFENDANTS’ MOTION TO DISMISS
A.

Legal Standard

On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the court must “assume that the factual allegations in the
complaint are true and give the plaintiff[] the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir.
2010). Although reasonable inferences are made in the plaintiff’s favor,
“‘unwarranted deductions of fact’ are not admitted as true.” Aldana v. Del Monte
Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water
Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (11th Cir. 1996)). The Court is
not required to accept, as true, conclusory allegations or legal conclusions. See
Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)
(construing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)); see Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1263

10

Even if the Court considered Plaintiffs’ proposed surreply, it would not
change the Court’s decision on Defendants’ Motion to Dismiss.
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(11th Cir. 2004) (“[C]onclusory allegations, unwarranted deductions of facts or
legal conclusions masquerading as facts will not prevent dismissal.” (quoting
Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)
(internal quotation marks omitted))).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Mere “labels and conclusions” are insufficient.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires more than
the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290 (quoting
Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] [plaintiff’s]
claims across the line from conceivable to plausible.” Id. at 1289 (quoting
Twombly, 550 U.S. at 570).
B.

Plaintiffs’ Complaint

The Court begins its analysis of Plaintiffs’ Complaint with some preliminary
observations. The Complaint is poorly drafted, difficult to follow, and unclear. It
15

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is fraught with conclusory claims, unsupported by factual allegations sufficient to
support the inferences claimed by Plaintiffs. It wholesale ignores the plausibility
required by Iqbal. This conclusion is supported by the Complaint itself. Plaintiffs
refer generally to “[TBS] and/or CNN,” without specifying which allegations refer
to which Defendant, and the Complaint does not offer any specific allegations
against Defendants Time Warner and TS. The Complaint also is littered with
conclusory assertions, rank speculation, confusing statements, and generalized
allegations that lack factual support. For example:
 Plaintiffs rely heavily on “Turner and/or CNN’s Human Resources
Diversity Trends Report,” claiming—without explanation and with an
eye toward sensationalism—that its “stark statistics can only be
attributed to” discrimination. (Compl. ¶¶ 4-5 (emphasis added);
see also Compl. ¶ 33 (“There is no objective factor other than race that
can explain th[e] disparity” in employee performance evaluations);
Compl. ¶ 3 (“There is no factor (such as job grade, experience, or
similar factors) that could explain this race-based difference in
[performance] scores.”)). Plaintiffs do not clearly identify the
particular Defendant to which the statistics relate, and, as explained
later in this Order, there are several non-discriminatory factors that
could explain the statistics in the HR Report.
 The Complaint alleges, without any explanation or elaboration, that
Cartoon Network “employed over twenty-five (25)
African-Americans who never received the opportunity to matriculate
to permanent status.” (Compl. ¶ 60).
 Although the body of the Complaint alleges, in a single sentence, that
Henley “was discriminated against and mistreated in the workforce
based on . . . sex and pregnancy,” none of the counts asserted in the
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Complaint refer to sex- or pregnancy-based discrimination. (Compl.
¶ 9).
 Plaintiffs baldly assert that Colbert was “required to work twice as
hard as his Caucasian counterparts,” but later allege that
African-Americans are required to “labor three times as long as
Caucasians.” (Compl. ¶¶ 42, 46).
 The Complaint alleges, without any factual support, that
“African-Americans in senior positions are concentrated in less
powerful and non-revenue-generating areas.” (Compl. ¶ 5).
 The Complaint alleges the speculative conclusion that Defendants’
“formal interview process may be a sham to disguise the fact that a
candidate has been pre-selected.” (Compl. ¶ 61 (emphasis added)).
 Although Henley repeatedly alleges she worked for CNN, she also
suggests that she worked in the “Cartoon Network Division of
Turner” and that her superior was “the President/COO of CNN’s
AYAKAM Division.” (Compl. ¶¶ 9, 59-60). AYAKAM appears to
be a TBS division unrelated to CNN, and the Complaint does not
allege that Cartoon Network is part of CNN.
 Plaintiffs allege that, “although African-Americans make up about
30-35 percent of the employees in the mid-level managers and staffing
positions, they are extremely under-represented at higher pay grades
and senior positions.” (Compl. ¶ 5). Plaintiffs fail to identify the
particular corporate entity or entities to which these statistics relate.11

11

Plaintiffs’ fast-and-loose approach to their Complaint also is evidenced by
their allegation that TBS “owns the professional baseball team Atlanta Braves.”
(Compl. ¶ 11). As Atlantans know, and as a simple Google search reveals, the
Atlanta Braves are owned by Liberty Media, not TBS. The Court, however,
accepts as true this allegation of the Complaint in its analysis.
17

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The Court, later in this Order, addresses several other examples of Plaintiffs’
unsupported allegations.
C.

Count 1 of Plaintiffs’ Complaint

Count 1 asserts that, in violation of 42 U.S.C. § 1981, Defendants engaged
in a “pattern and practice” of intentional race discrimination against Plaintiffs and
the Class by denying them equal treatment in compensation, promotions,
performance evaluations, and the “terms and conditions of employment.” (Compl.
¶ 75). Plaintiffs appear to assert section 1981 claims in their individual capacity
and as representatives of the putative Class.
1.

Plaintiffs’ Individual Section 1981 Claims
a)

Legal Standard

Section 1981 provides that all persons “shall have the same right in every
State and Territory to make and enforce contracts . . . as is enjoyed by white
citizens.” 42 U.S.C § 1981(a). This includes equal rights in “the making,
performance, modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship.”
42 U.S.C § 1981(b). “To state a claim of race discrimination under § 1981, a
plaintiff must allege facts establishing: (1) that he is a member of a racial minority;
(2) that the defendant intended to discriminate on the basis of race; and (3) that the
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discrimination concerned one or more of the activities enumerated in the statute.”
Moore v. Grady Mem’l Hosp. Corp., 834 F.3d 1168, 1171-72 (11th Cir. 2016).
Section 1981 requires a showing of “purposeful discrimination,”
Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999), and “provides
protection only on the basis of race,” Rollins v. Alabama Cmty. Coll. Sys.,
814 F. Supp. 2d 1250, 1259 n.1 (M.D. Ala. 2011). Plaintiff’s allegations must
“support a reasonable expectation that discovery would reveal evidence that these
Defendants acted with racially-discriminatory animus.” Ford v. Strange, 580 F.
App’x 701, 713 (11th Cir. 2014); see Jackson, 372 F.3d at 1274 (stating that
plaintiff’s allegations must support the inference “that racial animus motivated the
defendants”).
“If a plaintiff fails to show the existence of a similarly-situated employee,
judgment as a matter of law is appropriate where no other plausible allegation of
discrimination is present.” Arafat v. Sch. Bd. of Broward Cty., 549 F. App’x 872,
874 (11th Cir. 2013). “When comparing similarly situated individuals to raise an
inference of discriminatory motivation, the individuals must be similarly situated
in all relevant respects besides race, since different treatment of dissimilarly
situated persons does not violate civil rights laws.” Jackson, 372 F.3d at 1273.
For example, in Arafat, the plaintiff claimed she was underpaid by her employer
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because she was a woman. 549 F. App’x 872. She alleged that “‘male and
younger’ employees who worked jobs ‘requiring equal skill, effort and
responsibility’ were paid more than her during her employment.” Id. at 875. The
Eleventh Circuit dismissed plaintiff’s claim on the grounds that “[s]he did not
plead the facts comparing her skill, effort, and responsibility levels to those
younger males who were allegedly paid more than her.” Id. In
Toomer v. Savannah Rose of Sharon, LLC, No. 4:12-cv-057, 2012 WL 952755
(S.D. Ga. Mar. 20, 2012), plaintiff claimed an employer declined to hire him
because he was black. Plaintiff alleged that he applied for an office clerk position
for which he was qualified, and that a less qualified white applicant was hired to
fill the position. The court dismissed plaintiff’s discrimination claim for failure to
“state what the job’s requirements were, how he met them, and how the job’s white
recipient was (a) similarly situated; yet (b) met or fell beneath his qualification
level.” Id. at *2.
b)

Henley’s Individual Section 1981 Claims

Henley claims she enjoyed a positive working experience until she returned
from maternity leave, when her workload increased significantly and her requests
for additional support staff were denied. (Compl. ¶¶ 59, 71). She “was required to
work 12 to 13 hour shifts and remain on-call . . . while other Caucasian executive
20

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assistants, in the same department, were only required to work from 8:00A.M. to
4:00P.M.” (Compl. ¶¶ 43, 59, 69-70). She was “written up” for failing to timely
file an expense report, which, she alleges, should have been handled by others
while she was on maternity leave. (Compl. ¶¶ 43, 59, 71). She also was written up
for failing to file a credit card report on time. (Compl. ¶ 71).
These allegations do not plausibly allege purposeful race discrimination.
Henley “does not identify any specific, similarly situated, non-minority individual
who was treated better in a similar situation.” Scott v. Lake Arrowhead Yacht &
Country Club, Inc., No. 1:15-cv-00158, 2016 WL 4541442, at *3 (N.D. Ga. Aug.
31, 2016); see Jackson, 372 F.3d at 1274 (granting defendant’s motion to dismiss a
section 1981 claim where plaintiff failed to “identify any specific nonminority
employees . . . who were treated differently in other similar cases”). Her only
reference to a comparator is her general allegation that “other Caucasian executive
assistants[] in the same department” worked fewer hours. This is insufficient
because it fails to identify or describe the comparators in enough detail to “show
that [Henley] and the employees are similarly situated in all relevant respects” or
that they are “nearly identical.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,
1091 (11th Cir. 2004); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997);
see Benjamin v. Holy Cross Hosp., No. 11-cv-62142, 2012 WL 1900026, at *2
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(S.D. Fla. May 24, 2012) (noting, at the motion to dismiss stage, that
“a comparator must be similarly situated in all relevant respects and nearly
identical to the plaintiff”); Scribner v. Collier Cty., No. 2:10-cv-728, 2011 WL
2746813, at *4 & n.5 (M.D. Fla. July 14, 2011) (noting that “the comparator must
be nearly identical to prevent courts from second-guessing employers’ reasonable
decisions,” and granting defendants’ motion to dismiss plaintiff’s discrimination
claims because “plaintiff’s allegations of a comparator are insufficient”).
Henley does not allege, for example, that she and the comparators were
equally qualified and competent, or that they worked for the same supervisor on
similar matters. See Caraway v. Sec’y, U.S. Dep’t of Transp., 550 F. App’x 704,
710 (11th Cir. 2013) (stating, at the motion to dismiss stage, that “differences in
treatment by different decision makers can seldom be the basis for a viable claim
of discrimination”); Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1261 n.5
(11th Cir. 2001) (“[D]ifferences in treatment by different supervisors . . . can
seldom be the basis for a viable claim of discrimination.”); Moore v. Shands
Jacksonville Med. Ctr., Inc., No. 3:09-cv-298, 2013 WL 12178164, at *7 (M.D.
Fla. Oct. 18, 2013) (“A comparator and a plaintiff are dissimilar if they do not have
in common similar levels of experience or education.”). Henley also does not
describe the structure of her division, whether there are subdivisions or discrete
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groups within it, and does not allege facts about the role or responsibilities of
executive assistants, including whether and how they vary. Henley does allege that
she enjoyed a positive working environment before her pregnancy, and
experienced mistreatment only after returning from maternity leave, which
suggests that race was not the reason for her alleged mistreatment. See Iqbal, 556
U.S. at 682 (finding that plaintiff’s allegation of purposeful discrimination was not
plausible in light of an “obvious alternative explanation”); Lewis v. Bentley, No.
2:16-cv-690, 2017 WL 432464, at *11 (N.D. Ala. Feb. 1, 2017) (stating that a
discrimination claim “is not plausible where there is an obvious alternative
explanation for the conduct other than intentional discrimination”);
Heard v. Hannah, 51 F. Supp. 3d 1129, 1144 (N.D. Ala. 2014) (dismissing a race
discrimination claim where the “the Amended Complaint itself supplies more than
ample reason to think that Plaintiff’s [alleged mistreatment] was motivated by
reasons that were not race-based”).12 Although Henley’s allegations are
12

To the extent this suggests that Henley’s sex or pregnancy was the reason for
her alleged mistreatment, this does not support a violation of section 1981, which
“is directed exclusively toward racial discrimination.” Tucker v. Talladega City
Sch., 171 F. App’x 289, 295 (11th Cir. 2006); see Hayden v. Atlanta Newspapers,
A Div. of Cox Enterprises, Inc., 534 F. Supp. 1166, 1168 (N.D. Ga. 1982)
(“Section 1981 proscribes race, and not sex, discrimination.”). To the extent
Henley developed a backlog of work as a result of her maternity leave, this
materially differentiates Henley from other executive assistants in her division.
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“consistent” with intentional race discrimination, and may support a “suspicion” or
“possibility” of misconduct, they do not raise “a reasonable expectation that
discovery would reveal evidence that these Defendants acted with
racially-discriminatory animus.” Twombly, 550 U.S. at 555, 557; Ford, 580 F.
App’x at 713.
Henley next asserts that she was terminated in retaliation for complaining
internally about “discrimination and mistreatment” at work. (Compl. ¶¶ 9, 35, 59).
“To state a retaliation claim under § 1981, a plaintiff must allege a defendant
retaliated against him because the plaintiff engaged in statutorily protected
activity.” Jimenez v. Wellstar Health Sys., 596 F.3d 1304, 1311 (11th Cir. 2010).
“An employee engages in protected activity if he opposes an employment practice
based on a good faith, [objectively] reasonable belief that the practice
violates . . . Section 1981.” Canty v. Fry’s Elecs., Inc., No. 1:09-cv-3508, 2012
WL 1038611, at *5 (N.D. Ga. Mar. 27, 2012); see Bryant v. U.S. Steel Corp.,
428 F. App’x 895, 898 (11th Cir. 2011) (“In order for a plaintiff’s actions to be a
protected activity, she must show both that she believed in good faith that her
employer was engaged in unlawful employment practices, and that her belief was
(See Compl. ¶ 43 (suggesting that Henley, when she returned from maternity leave,
was responsible for work that should have been completed while she was on
maternity leave)).
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objectively reasonable in light of the facts and record presented.”). “[I]n order to
constitute statutorily protected activity capable of supporting a § 1981 retaliation
claim, an employee’s complaint must reasonably convey that she is opposing
discrimination based specifically upon race, versus some other type of
discrimination or injustice generally.” Cochran v. S. Co., No. 14-cv-0569, 2015
WL 3508018, at *2 (S.D. Ala. June 3, 2015); see Adams v. Cobb Cty. Sch. Dist.,
242 F. App’x 616, 620 (11th Cir. 2007) (noting that section 1981 “prohibits an
employer from retaliating against its employee as a response to the employee’s
complaint of race-based discrimination.”); Turner v. McKesson Corp., No. 2:12cv-2053, 2013 WL 4727651, at *8 (N.D. Ala. Sept. 3, 2013) (“[T]o be considered
protected activity under § 1981, any complaints must include some sort of
reference to race discrimination or harassment.”).
Henley fails to state a retaliation claim under section 1981 because she does
not clearly plead that her internal complaint (1) alleged race discrimination or
(2) addressed conduct, viewed objectively, that could reasonably be regarded as
prohibited by section 1981. Although Henley states that she reported
“discrimination and mistreatment” to a human resources employee, she does not
provide further information about her complaint. (Compl. ¶¶ 9, 35, 59). In view of
the allegations in the Complaint, it is possible that she complained about (1) her
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workload after returning from maternity leave, (2) being written up for untimely
submitting expense reports, or (3) her salary. (See Compl. ¶ 59 (alleging that
White informed Henley, after investigating her discrimination complaint, that there
was “no disparity in the Cartoon Networks employees’ salaries across Turner”).
It is further possible that Henley’s complaint alleged that her mistreatment
occurred on the grounds of race, sex, or pregnancy. (Compl. ¶ 9 (claiming
discrimination on the grounds of race, sex and pregnancy)). Henley, having failed
to identify the content of her complaint, does not allege facts—and leaves only
speculation—that she expressed opposition to intentional race discrimination and
that her complaint addressed conduct, viewed objectively, that reasonably could be
regarded as a violation of section 1981. Henley’s retaliation claim fails because
she does not proffer enough factual content to “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678-79
(stating that a complaint must plead enough “factual content” to establish an
entitlement to relief that is more than possible). Henley fails to state a claim under
section 1981,13 and her allegations do not support that Defendants engaged in a

13

Plaintiffs’ Complaint makes it difficult to determine the specific claims
asserted. In “Count One,” entitled “discrimination against the named Plaintiffs and
the Class in violation of section 1981,” Plaintiffs allege:

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pattern and practice of intentional race discrimination against Plaintiffs and the
Class.14
c)

Colbert’s Individual Section 1981 Claims

Colbert alleges that, when he was a mid-level Manager in TBS’s
Entertainment division, (1) he was paid “less than Caucasian employees in the
same pay grade performing the same job,” even though he worked “twice as hard
as his Caucasian Counterparts” (Compl. ¶¶ 10, 42); (2) he requested, but was

Defendant has intentionally discriminated against Plaintiffs and the
Class in violation of Section 1981 by a pattern and practice of
(1) paying African-Americans salaried employees and mid-level
managerial employees less than comparable Caucasian employees;
(2) denying promotions to qualified African-American salaried
employees and mid-level managerial employees on the basis of race;
(3) giving African-American salaried employees and mid-level
managerial employees lower evaluations than Caucasian employees
on the basis of race; and (4) denying African-American salaried
employees and mid-level managerial employees equal terms and
conditions of employment.
(Compl. ¶ 75). To the extent that Henley alleges intentional race
discrimination based on pay, promotions, evaluations, and terms and
conditions of employment, her claims are dismissed.
14
Even if Henley’s internal complaint alleged racial discrimination on the
grounds that she received write-ups and additional work after returning from
maternity leave, Henley’s retaliation claim still would fail because, for the reasons
stated earlier in this Order, her write-ups and additional workload do not warrant
an objectively reasonable belief that she was subject to intentional race
discrimination under section 1981. See Bryant v. U.S. Steel Corp., 428 F. App’x
895, 898 (11th Cir. 2011).
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denied, a promotion or pay increase while “a similarly situated Caucasian woman
in his department” received several pay grade increases, (Compl. ¶¶ 39, 67); and
(3) “[t]he Caucasian who held his position previously was promoted to a job grade
several levels above Mr. Colbert while performing the exact same job duties as
Mr. Colbert,” (Compl. ¶ 57). Colbert also alleges that, since his promotion to
Senior Manager in 2016, he has been underpaid “in comparison to the Caucasian
Senior Managers” in the Programming and Marketing divisions where he works.
(Compl. ¶¶ 42, 58, 66).
These allegations do not plausibly allege purposeful race discrimination
because “there is insufficient information alleged to determine whether the
employees identified as receiving [promotions or] higher pay qualify as similarly
situated comparators.” Benjamin, 2012 WL 1900026, at *2 (granting a motion to
dismiss plaintiff’s discrimination claims). For example, Colbert does not allege
that his comparators “had similar levels of experience or education,” had “similar
levels of seniority,” or received similar performance evaluations. Cooper v. S. Co.,
390 F.3d 695, 741, 743, 745 (11th Cir. 2004); see Benjamin, 2012 WL 1900026, at
*2 (relying on Cooper to grant a motion to dismiss); Henderson v. Dade Cty.
Police Benev. Ass’n, Inc., No. 14-cv-20321, 2014 WL 3591600, at *7 (S.D. Fla.
July 18, 2014) (granting defendant’s motion to dismiss plaintiff’s race
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discrimination claims because “Plaintiff has not alleged how each [comparator] is
‘nearly identical’ to the plaintiff, or how they are similarly-situated ‘in all relevant
aspects,’” including because plaintiff did not allege that the promoted comparators
“were equally or less qualified than her”). Each of these variables “may constitute
a legitimate, non-discriminatory justification for differences in compensation” or
promotions. Cooper, 390 at 743.
Colbert’s failure to address these variables undermines the plausibility of his
discrimination claim, and leaves only a “possibility” of racially-discriminatory
animus. Twombly, 550 U.S. at 555, 557; Ford, 580 F. App’x at 713; Jackson, 372
F.3d at 1274; see Burgis v. N.Y. City Dep’t of Sanitation, 798 F.3d 63, 69 (2d Cir.
2015) (“Without any specificity as to the qualifications considered for each
position [to which plaintiffs seek promotion] and without any reference to specific
statements or individual circumstances that suggest discriminatory treatment,
plaintiffs’ allegations do not support a finding [at the pleading stage] that
defendants acted with a discriminatory purpose.”). To the extent Colbert
repeatedly describes other employees as “similarly situated Caucasions,”
“Caucasian counterparts” or “comparable Caucasian employees,” (see, e.g.,
Compl. ¶¶ 10, 39, 41-42, 66), these allegations are “precisely the sort of label and
conclusion [and] formulaic recitation of the element of a cause of action that the
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Twombly Court found inadequate.” Ashmore v. F.A.A., No. 11-cv-60272, 2011
WL 3915752, at *4 (S.D. Fla. Sept. 2, 2011). Colbert fails to state a claim under
section 1981, and his allegations do not support that Defendants engaged in a
pattern and practice of intentional race discrimination against Plaintiffs and the
Class.15 Plaintiffs’ individual section 1981 claims are dismissed.16
2.

Plaintiffs’ Section 1981 Class Claims
a)

Legal Standard

Count 1 asserts that Defendants engaged in a “pattern and practice” of race
discrimination against the Class. To state a plausible claim for pattern and practice
discrimination, plaintiffs must show that “discrimination is the company’s standard
operating procedure—the regular rather than unusual practice.” E.E.O.C. v. Joe’s
Stone Crab, Inc., 220 F.3d 1263, 1287 (11th Cir. 2000).17 Plaintiff must allege
15

Colbert alleges that he did not receive a formal job description and that TBS
failed to maintain his personnel file. (Compl. ¶¶ 10, 36, 42, 57). These allegations
fail to state a claim under section 1981, because Colbert does not allege that
similarly situated white individuals were treated differently.
16
As the Court noted in footnote 13, it is hard also to determine the claims
asserted by Colbert. To the extent Colbert alleges intentional race discrimination
based on pay, promotions, evaluations, and terms and conditions of employment,
these claims are dismissed.
17
The Court draws on Title VII case law because “the same analytical
framework and proof requirements that apply to employment discrimination claims
under Title VII also apply to discrimination claims under Section 1981.”
Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 n.6 (11th Cir. 2015)
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“more than the mere occurrence of isolated or accidental or sporadic
discriminatory acts.” Id. at 1286-87. “[P]attern or practice cases are a variant of
the disparate treatment theory and thus proof of discriminatory motive is critical.”
Id. at 1287. “A plaintiff may establish a pattern or practice claim through a
combination of strong statistical evidence of disparate impact coupled with
anecdotal evidence of the employer’s intent to treat the protected class unequally.”
Id.
b)

Inadequate Class Representatives

“When a named plaintiff has no cognizable claim for relief, she cannot
represent others who may have such a claim, and her bid to serve as a class
representative must fail.” Sanford v. MemberWorks, Inc., 625 F.3d 550, 560 (9th
Cir. 2010). The Court previously concluded that Plaintiffs, in their individual
capacity, fail to state a claim under section 1981. Plaintiffs are thus precluded
from asserting section 1981 claims on behalf of the putative Class. Plaintiffs’
section 1981 Class claims are required to be dismissed for this reason. See
Hardy v. Fischer, 701 F. Supp. 2d 605, 611 n.5 (S.D.N.Y. 2010) (“In order for the

(discussing Title VII and section 1981 claims together at the motion to dismiss
stage); see also Cooper v. S. Co., 260 F. Supp. 2d 1352, 1356-57 (N.D. Ga. 2003),
aff’d, 390 F.3d 695 (11th Cir. 2004) (noting that pattern and practice claims are
viable under section 1981).
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[putative class action] complaint to survive this motion to dismiss, the allegations
of at least one named plaintiff must state a claim for relief.”); Pruell v. Caritas
Christi, No. 09-cv-11466, 2010 WL 3789318, at *4 (D. Mass. Sept. 27, 2010) (“To
survive a motion to dismiss [in a putative class action], the allegations of at least
one named plaintiff must state a claim for relief.”); Sheet Metal Workers 441
Health & Welfare Plan v. GlaxoSmithKline, 263 F.R.D. 205, 210 (E.D. Pa. 2009)
(“[W]hen the named plaintiff lacks a cause of action, the Court should dismiss the
action before proceeding to class certification.”); Burks v. Arvest Bank, No. 4:06cv-00551, 2006 WL 3512478, at *2 (E.D. Ark. Dec. 6, 2006) (“Since the Court has
dismissed the sole named Plaintiff’s individual claims, the Court must dismiss the
class allegations as well and no notice of this involuntary dismissal need be given
to any alleged unnamed class members.”); see also Zimmerman v. HBO Affiliate
Group, 834 F.2d 1163, 1169 (3d Cir.1987) (“[T]o be a class representative on a
particular claim, the plaintiff himself must have a cause of action on that claim.”).
c)

Failure to Allege Plausible Section 1981 Class Claims

Even if Plaintiffs could assert section 1981 claims on behalf of the putative
Class, Plaintiffs have failed to plausibly allege that Defendants engaged in a
pattern and practice of race discrimination against Plaintiffs and the Class.

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(1)

Defendants’ Undue Discretion

Plaintiffs complain that Defendants exercise “undue discretion” in
determining compensation, promotions, and performance evaluations.
(See, e.g., Compl. ¶ 3). The Complaint lacks any facts describing Defendants’
evaluation process, and provides insufficient information about Defendants’
compensation process. The limited facts alleged do not support Plaintiffs’ “undue
discretion” claim. (See, e.g., Compl. ¶ 38 (alleging that Defendants consider a
“variety of factors” in determining employee compensation, “including the
employee’s pay grade, the employee’s position within the salary range of that
grade, and the employee’s score”)). Plaintiffs allege that Defendants generally use
a “targeted selection procedure” to fill open positions. (Compl. ¶ 48). Supervisors
conduct “multiple one-on-one interviews” with candidates, ask them “scripted
questions,” and rate them on “objective criteria” known as “preferred
qualifications.” (Compl. ¶¶ 48-51). The use of “scripted questions” and “objective
criteria” suggests limited, not excessive, discretion. Plaintiffs do not describe the
“objective criteria” and they do not explain how promotion decisions are made
after the candidates are interviewed and rated. Plaintiffs have not plausibly alleged
that Defendants utilize “undue discretion” in determining compensation,
promotions, and performance evaluations. Even if they had, “an employer’s use of
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subjective factors in making decisions does not raise a red flag.” Cooley v. Great
S. Wood Preserving, 138 F. App’x 149, 160 n.6 (11th Cir. 2005) (rejecting
plaintiffs’ argument that the defendant’s “discretion in making employment
decisions” suggested race discrimination). “[A]n employer’s policy of leaving
[employment] decisions to the unchecked discretion of lower level supervisors
should itself raise no inference of discriminatory conduct.” Watson v. Fort Worth
Bank & Trust, 487 U.S. 977, 990 (1988); see Criner v. Texas--New Mexico Power
Co., 470 F. App’x 364, 370 (5th Cir. 2012) (“The Supreme Court has stated
numerous times that a subjective decision making process does not raise inferences
of discriminatory conduct.”).18
(2)

Anecdotes and Conclusory Allegations

Plaintiffs offer several conclusory allegations to support their claim that
Defendants engaged in a pattern and practice of intentional race discrimination.
Plaintiffs allege that “[a]lthough [CNN] has a policy requiring managers to be
evaluated on their [Equal Employment Opportunity] performance, in practice,
Turner and/or CNN frequently fails to perform this critical evaluation.” (Compl.
18

Plaintiffs allege that Defendants sometimes fill positions through
management nomination or other closed forms of “sourcing.” (Compl. ¶¶ 26, 52).
This allegation, without more, is not sufficient to plausibly allege purposeful race
discrimination.
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¶ 63). Plaintiffs claim that “African-American employees have had to endure
racial slurs and prejudicial biases from their superiors such as, ‘it’s hard to manage
black people’ and ‘who would be worth more: black slaves from times past, or
new slaves.’” (Compl. ¶ 27).19 Plaintiffs assert that Turner and/or CNN
“den[ies] African-American employees equal training, mentoring, and work
assignments,” and that “some of Turner and/or CNN’s administrative practices
reflect condescending or stereotypical attitudes toward African-Americans.”
(Compl. ¶¶ 26, 31). Plaintiffs allege that white employees often “skip one or two
position levels when promoted” while African-American employees “are simply
promoted to the lowest next level.” (Compl. ¶ 5). Plaintiffs further allege that,
unlike white employees, African-American employees often are required, without
a promotion or a pay increase, to assume the responsibilities of more senior
positions. (Compl. ¶ 5). The Complaint does not provide “further factual
enhancement” for any of these “naked assertions.” Iqbal, 556 U.S. at 678
(“[A] complaint [does not] suffice if it tenders naked assertions devoid of further
factual enhancement.”). Because the allegations described in this paragraph are
conclusory, generalized and unsupported by factual allegations, Plaintiffs’
19

Plaintiffs do not offer further information about these statements, including
when they were made, to whom they were made, which “superiors” made them, or
the circumstances under which they were made.
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discrimination claim is not plausibly alleged. See Jackson, 372 F.3d at 1263
(stating that “conclusory allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts will not prevent dismissal,” and dismissing
plaintiffs’ section 1981 claim because their allegations were “wholly conclusory,
generalized, and non-specific”).
Plaintiffs next allege that “[o]ther Caucasians,” but not an African-American
employee, received a bonus for their contribution to a $20 million work project.
(Compl. ¶ 29). After the project, the African-American employee was passed over
for promotion in favor of “her Caucasian counterpart.” (Compl. ¶ 29). These
broad, conclusory allegations—based on a single project about which no details are
alleged, including the number of employees who worked on it—do not plausibly
allege intentional race discrimination because “there is insufficient information
alleged to determine whether the employees identified as receiving [a bonus or
promotion] qualify as similarly situated comparators.” Benjamin, 2012 WL
1900026, at *2. Plaintiffs do not provide meaningful information about the
African-American employee who allegedly experienced discrimination, the “other
Caucasians” who received a bonus, or the “Caucasian counterpart” who was
promoted. Plaintiffs also fail to describe the individuals’ contributions to the

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project, the type of project, the number of people who worked on it, or the number
of bonuses given and for what reason.
Plaintiffs allege that an unnamed African-American applicant for a human
resources position, employed somewhere within Defendants’ network of
companies, was overlooked in favor of a less-qualified white candidate:
Defendants selected a Caucasian for a Chief Human Resource
position simply because the individual met some of the ‘preferred
qualifications’; however, in reviewing the entire candidate slate (pool)
and their respective resumes, Defendants’ Caucasian selection was far
less qualified than the African-American who was the only candidate
who possessed a PhD, an MBA degree, an undergraduate degree and
who possessed more years of experience within Defendants’
Networks. In fact, the Caucasian who was selected had previously
reported to the more qualified African-American who was passed
over.
(Compl. ¶ 5). These allegations do not show that Defendants declined to promote
the unidentified African-American applicant because of racially-discriminatory
animus. Plaintiffs allege that the white applicant, during his interviews, “met some
of the ‘preferred qualifications’” on which Defendants apparently based their
hiring decision. Plaintiffs do not allege facts about the African-American
candidate’s interview performance or about his satisfaction of Defendants’
preferred qualifications. See Wilson, 376 F.3d at 1091 (stating that “[t]he plaintiff
and the employee she identifies as a comparator must be similarly situated in all
relevant respects” and that “[t]he comparator must be nearly identical to prevent
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courts from second-guessing a reasonable decision by the employer”); Jackson,
372 F.3d at 1273 (making the same point in the motion to dismiss context);
Eldredge v. EDCare Mgmt., Inc., No. 12-cv-61984, 2014 WL 590336, at *2
(S.D Fla. Feb. 14, 2014) (making the same point in the motion to dismiss context).
Plaintiffs also fail to describe the experience and qualifications of the white
applicant, do not explain the relevance of each candidate’s experience and
qualifications to the position for which they applied, do not describe the applicants’
performance evaluations or compensation, and do not identify the internal
positions from which the candidates applied. There are a myriad of plausible
non-discriminatory reasons for Defendants’ employment decision.
Even if Plaintiffs’ allegations did suggest racially-discriminatory animus
against the African-American employee who applied for the “Chief Human
Resource position,” they do not show that the named Plaintiffs were subject to
discrimination, and they are insufficient to support a pattern and practice claim
against the Defendants named because they allege only a single incident of
plausible discrimination. See Joe’s Stone Crab, 220 F.3d at 1287 (stating that, to
establish a pattern and practice claim, “isolated or accidental or sporadic
discriminatory acts” are insufficient because racial discrimination must be “the
company’s standard operating procedure”); cf. Reeves v. Fed. Reserve Bank of
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Chicago, No. 00-cv-5048, 2003 WL 21361735, at *13 (N.D. Ill. June 12, 2003)
(“[A]necdotal evidence relating to a few employees in one department of one of an
employer’s locations is not enough to state a pattern and practice claim where an
employer employs over 2,000 employees in numerous locations with numerous
department[s].”).
Plaintiffs’ paucity of generalized anecdotes and conclusory allegations do
not support their claim that Defendants engaged in a pattern and practice of
intentional race discrimination against Plaintiffs and the Class.
(3)

Statistics

Plaintiffs rely heavily on the statistics in TBS’s HR Report. “Statistics may
be used to establish an individual plaintiff’s claim that a pattern or practice of
discrimination existed, or simply to bolster the plaintiff’s circumstantial evidence
of individual disparate treatment.” Cooper v. S. Co., 260 F. Supp. 2d 1352, 1357
(N.D. Ga. 2003), aff’d, 390 F.3d 695 (11th Cir. 2004). “A showing of disparate
impact through a neutral practice is insufficient to prove a § 1981 violation because
proof of discriminatory intent is essential.” Ferrill v. Parker Grp., Inc., 168 F.3d
468, 472 (11th Cir. 1999).
The HR Report shows that, from 2010 through the first quarter of 2013,
employees “of color” received lower performance evaluations, were paid less, or
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were promoted at a lower rate than the average employee in some, but not all, TBS
divisions.20 This data does not plausibly show that Defendants engaged in
intentional racial discrimination against the named Plaintiffs or the Class, and does
not show intentional discrimination in divisions within TBS. First, the data
focuses on disparities between the average employee and employees “of color.”
Although the HR Report does not define an employee “of color,” the term appears
to include several races other than African-American. See
https://en.oxforddictionaries.com/definition/us/person_of_color (defining a “person
of color” as “a person who is not white or of European parentage”).21 Because the
HR Report does not separate African-Americans from other employees of color, it
does not provide support for the claims asserted based on the status of
African-Americans in TBS divisions. See Burke-Fowler v. Orange Cty., Fla., 447
F.3d 1319, 1325 (11th Cir. 2006) (“[T]he Supreme Court has emphasized the
importance of looking to the proper base group when making statistical
comparisons and examining all of the surrounding facts and circumstances which
create the statistics themselves.”).
20

The report apparently does not contain any data for Defendants Time
Warner, CNN or TS.
21
That the HR Report divides employees into only two racial groups—“white”
and “of color”—supports the conclusion that it uses the term “of color” to refer to
nonwhite employees generally. (See [1.2] at 2-11).
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Second, even if the HR Report was a basis for alleging that AfricanAmericans received lower performance ratings, were promoted at lower rates and
were paid less than the average employee in certain TBS divisions, the report does
not plausibly allege that Defendants engaged in purposeful race discrimination.
The report “indicate[s] average salaries[, performance ratings and promotion rates]
of employees divided by racial classification but do[es] not control for factors such
as education, experience or skill level and thus cannot prove that Defendants
discriminated on the basis of race.” Cooper v. S. Co., 260 F. Supp. 2d 1352, 1368
(N.D. Ga. 2003), aff’d, 390 F.3d 695 (11th Cir. 2004).22 That the data shows
employees of color were underrepresented in certain Senior Positions also is not
enough. The report “show[s] only the raw percentages of White [and of-color]
individuals at each employment level, without providing any detail as to the
22

Count 1 of the Complaint does not specifically allege that Defendants
discriminated in their termination of employees. Even if it did, the claim is not
supported by the HR Report’s finding that African-American employees are
terminated at a higher rate than the average employee in certain TBS divisions.
“Statistics that merely describe the[] employees as minority or non-minority and
disclose whether they were fired or disciplined less severely proves nothing
without more information about the particular circumstances involved in each
situation.” Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1325 (11th Cir.
2006) (finding insufficient statistics showing that “the County terminates minority
correctional officers for fraternization with inmates over ninety percent of the time
but that white correctional officers retain their jobs over sixty-six percent of the
time for the same violation”). “Different types and degrees of misconduct may
warrant different types and degrees of discipline.” Id.
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number of individuals at each level, the qualifications of individuals in the
applicant pool and of those hired for each position, or the number of openings at
each level.” Burgis v. N.Y. City Dep’t of Sanitation, 798 F.3d 63, 70 (2d Cir.
2015) (finding statistics insufficient to save plaintiffs’ pattern and practice claim
from dismissal at the pleading stage).
Third, the compensation, performance ratings and promotion rates of
employees of color were as high as, or higher than, their comparators in several
TBS divisions. In TBS’s Sports, Media and Research divisions, females of color
received a higher performance rating than the average female or the average
employee. ([1.2] at 2, 9, 11). In TBS’s Public Relations, Strategy and Media
divisions, males of color were paid the same as, or more than, the average male or
the average employee. ([1.2] at 8, 9-10). In TBS’s Research division, females of
color were paid more than the average female. ([1.2] at 11). In TBS’s Sports,
Entertainment, News, and Research divisions, males of color had the same
promotion rate, or a higher promotion rate, than the average male or the average
employee. ([1.2] at 1-2, 5, 11). In TBS’s Strategy, Finance & Accounting, Sports,
and Entertainment divisions, females of color had the same promotion rate, or a
higher promotion rate, than the average female or the average employee. ([1.2] at
3, 10).
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Finally, the HR Report provides data for only three of the approximately
twenty years in which Plaintiffs allege that Defendants engaged in race
discrimination.23 It also reveals disparities in only a subset of TBS’s divisions, and
the relevance of the data to Defendants Turner, CNN and TS is not apparent from
the report or the Complaint.
The HR Report, and Plaintiffs’ class-wide allegations, do not support that
Defendants engaged in a pattern and practice of intentional race discrimination
against Plaintiffs and the Class.
3.

Conclusion

Plaintiffs fail to state individual claims under section 1981 because they
have not shown they were subject to intentional race discrimination. Plaintiffs also
fail to state a section 1981 claim on behalf of the putative Class because Plaintiffs
are barred from representing the Class and, even if they were not, Plaintiffs fail to
plausibly allege a pattern and practice of intentional race discrimination. Count 1
is dismissed.

23

Most of this three-year period occurred outside the four-year limitations
period applicable in section 1981 cases. See Chandler v. Volunteers of Am., N.
Alabama, Inc., 598 F. App’x 655, 665 (11th Cir. 2015) (“[A] § 1981 action must
be filed within the four-year statute of limitations prescribed by 28 U.S.C.
§ 1658.”).
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D.

Counts 2 and 3 of Plaintiffs’ Complaint

Counts 2 and 3 of the Complaint assert discrimination claims under
Title VII. Plaintiffs appear to have withdrawn Counts 2 and 3 in response to
Defendants’ Motion to Dismiss. (See [26] at 1 n.1; [27.1] at 36; [34.1] at 2).
Even if they had not, Plaintiffs’ Title VII claims are required to be dismissed for
failure to exhaust their administrative remedies.24
In order to bring a viable claim in court under Title VII, a plaintiff
must first exhaust administrative remedies. First, in a non-deferral
state such as Georgia, a plaintiff must file a complaint with the EEOC
within 180 days of the alleged discriminatory act or acts. Second,
upon receiving a right-to-sue letter from the EEOC upon the
termination of their investigation, the plaintiff may bring a civil action
against the named respondent within 90 days by filing a complaint.
Gant v. Jefferson Energy Co-op., 348 F. App’x 433, 434 (11th Cir. 2009). “The
plaintiff has the burden of establishing that she met the 90-day filing requirement.”
Perry v. S. Wine Spirits, 511 F. App’x 888, 889 (11th Cir. 2013); see
Burnett v. City of Jacksonville, FL, 376 F. App’x 905, 906–07 (11th Cir. 2010)
(stating, in the context of the 90-day filing requirement, that “a plaintiff must
generally allege in her complaint that all conditions precedent to the institution of
the lawsuit have been fulfilled”).

24

It is questionable whether there were grounds to allege these claims in the
first place.
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Plaintiffs do “not allege that [they] filed a complaint with the EEOC or that
[they were] issued a right-to-sue letter prior to filing the instant lawsuit. Nor did
[they] attach any documents to [their] complaint or allege any facts to suggest that
[they] had exhausted [their] remedies with the EEOC.” Burnett, 376 F. App’x at
907. This requires dismissal of Counts 2 and 3. Id.; cf. Carter v. W. Pub. Co., 225
F.3d 1258, 1263 (11th Cir. 2000) (“A plaintiff who seeks to represent a class in a
private Title VII suit must have standing to raise the class’ claims and must satisfy
the procedural requirements of Title VII.”). Defendants’ Motion to Dismiss is
granted.25
IV.

PLAINTIFFS’ MOTION TO AMEND
A.

Legal Standard

Rule 15(a) of the Federal Rules of Civil Procedure allows a plaintiff to file
one amended complaint, as a matter of course, if the amended complaint is filed
within 21 days of service of the original complaint or within 21 days of the
25

Based on documents provided by Defendants, it appears that Colbert never
filed an EEOC charge and that Henley filed her charge on May 30, 2014, and
received her right-to-sue letter on May 7, 2015. ([17.1] at 8-9; [17.2]; [17.3]).
Plaintiffs filed their Complaint on December 6, 2016, more than 90 days after
Henley received her right-to-sue letter. Henley’s Title VII claims are thus
time-barred. See Patel v. Georgia Dep’t of Behavioral Health & Developmental
Disabilities, 517 F. App’x 750, 753 (11th Cir. 2013) (finding that plaintiff’s
Title VII claim was time-barred because plaintiff failed to file his complaint within
90 days of receiving his right-to-sue-letter).
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defendant’s filing of a responsive pleading or Rule 12 motion to dismiss. See Fed.
R. Civ. P. 15(a)(1). Amended complaints may be filed outside of these time limits
only “with the opposing party’s written consent or the court’s leave.” Fed. R. Civ.
P. 15(a)(2). Defendants oppose Plaintiffs’ motion to amend their Complaint.
Rule 15 provides that “[t]he court should freely give leave [to amend] when
justice so requires.” Fed. R. Civ. P. 15(a)(2). “There must be a substantial reason
to deny a motion to amend.” Laurie v. Alabama Court of Criminal Appeals, 256
F.3d 1266, 1274 (11th Cir. 2001). “Substantial reasons justifying a denial include
‘undue delay, bad faith, dilatory motive on the part of the movant, . . . undue
prejudice to the opposing party by virtue of allowance of the amendment, [and]
futility of amendment.’” Id. (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
“A district court may deny leave to amend a complaint if it concludes that
the proposed amendment would be futile, meaning that the amended complaint
would not survive a motion to dismiss.” Christman v. Walsh, 416 Fed. App’x 841,
844 (11th Cir. 2011); Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th
Cir. 1999) (“[D]enial of leave to amend is justified by futility when the ‘complaint
as amended is still subject to dismissal.’” (quoting Halliburton
& Assoc., Inc. v. Henderson, Few & Co., 774 F.2d 441, 444 (11th Cir. 1985)));
Bazemore v. U.S. Bank, N.A., No. 1:14-cv-3310, 2016 WL 889676, at *5 (N.D.
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Ga. Mar. 8, 2016) (“Futility means that the amended complaint would fail to state a
claim upon which relief could be granted. Thus, the same standard of legal
sufficiency as applied under a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6) is used to determine futility.” (internal citation omitted));
Bill Salter Adver., Inc. v. City of Brewton, AL, 2007 WL 2409819, at *2 (S.D.
Ala. Aug.23, 2007) (“The futility threshold is akin to that for a motion to dismiss;
thus, if the amended complaint could not survive Rule 12(b)(6) scrutiny, then the
amendment is futile and leave to amend is properly denied.”).
B.

Analysis

Plaintiffs seek leave to file an amended complaint to “incorporate . . . new
facts and to clarify the allegations.” ([27] at 1-2).26 Defendants oppose Plaintiffs’
motion on the grounds that the Proposed Amended Complaint would require
dismissal and that amendment thus would be futile. ([33]). Plaintiffs’ Proposed
Amended Complaint retains Count 1, omits Counts 2 and 3, and offers no new
substantive allegations. It includes only cosmetic amendments—largely stylistic

26

Although Plaintiffs state that they seek to amend their Complaint to “add
new plaintiffs,” no new plaintiffs are named in the Proposed Amended Complaint.
([27] at 1).
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changes—which do not cure the deficiencies in the Complaint.27 Because the
Proposed Amended Complaint would require dismissal for the same reasons as the
initial Complaint, Plaintiffs’ Motion to Amend is denied as futile.
The Court also concludes it is unnecessary to allow Plaintiffs, who are
represented by counsel, the opportunity to file a further amended complaint.
Defendants’ Motion to Dismiss notified Plaintiffs of their pleading failures and, in
response, Plaintiffs sought leave to file their Proposed Amended Complaint, which
also fails to state a claim. A further opportunity to amend is not required. See
Eiber Radiology, Inc. v. Toshiba Am. Med. Sys., Inc., 673 F. App’x 925, 929–30
(11th Cir. 2016) (We do not . . . require . . . leniency [in allowing opportunities to
amend] where a plaintiff has been represented by counsel. We have never required
district courts to grant counseled plaintiffs more than one opportunity to amend a
deficient complaint.”); Cornelius v. Bank of Am., NA, 585 F. App’x 996, 1000
27

For example, the Proposed Amended Complaint alters the spelling and
capitalization of several words and makes minor word-choice, grammatical and
punctuation changes. (See, e.g., Compl. ¶¶ 12-13, 34-35). The Proposed
Amended Complaint also includes conclusory allegations that were not in the
initial Complaint. For example, Plaintiffs now allege, without elaboration, that
Henley and Colbert were “qualified for [their] job[s]” and that Colbert was
“substantially more qualified” than “other similarly situated employees” who
received promotions. ([33.1] ¶¶ 9-10, 57). Plaintiffs’ conclusory allegations are
required to be disregarded and are insufficient to withstand a motion to dismiss.
See Jackson, 372 F.3d at 1263.
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(11th Cir. 2014) (“[T]he subject complaint was Cornelius’s second attempt to
make a legally cognizable claim . . . . Because Cornelius already had been given
an opportunity to correct his pleadings, the judge was not required to give him
another chance.”); United States v. Fulton Cty., Georgia, No. 1:14-cv-4071, 2016
WL 4158392, at *15 (N.D. Ga. Aug. 5, 2016) (declining to allow a further
opportunity to amend where, after a motion to dismiss was filed, plaintiffs
submitted a proposed amended complaint that failed to state a claim); cf.
Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002).
V.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Leave to File

Surreply in Opposition to Defendants’ Reply in Support of its [sic] Motion to
Dismiss [34] is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss, Strike,
and/or for More Definite Statement of Plaintiffs’ Complaint [17] is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to Amend
the Complaint to Voluntarily Withdraw its [sic] Original Complaint [27] is
DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED.
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SO ORDERED this 25th day of July, 2017.

50