Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

Celeslie Henley and Ernest Colbert,

Jr.,

Plaintiffs,
CIVIL ACTION FILE
v.
NO. 1:16-cv-04506-WSD
Turner Broadcasting System, Inc.,
Time Warner Inc., Cable News
Network, Inc., and Turner Services,
Inc.,

Defendants.

DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF THEIR

MOTION TO DISMISS, STRIKE, AND/OR FOR MORE DEFINITE
STATEMENT OF PLAINTIFFS COMPLAINT

Pursuant to Fed. R. Civ. P. 12 and 23, Defendants Turner Broadcasting

System, Inc. (TBS, Inc.), Time Warner Inc. (TW), Cable News Network, Inc.

(CNN, Inc.), and Turner Services, Inc. (TSI) (collectively, Defendants)

respectfully move to dismiss or strike all of Plaintiffs individual and class claims,1

1
Plaintiffs Complaint purports to set forth the following claims:
Count One: Discrimination Against the Named Plaintiffs and the Class in
Violation of Section 1981
Count Two: Intentional Discrimination Against Plaintiffs Colbert and Henley
in Violation of Title VII
Count Three: Racially Disparate Impact in Violation of Title VII
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and/or for a more definite statement on the following grounds:2

Plaintiffs individual and class Title VII claims (Counts Two and Three)

should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6)

because Plaintiffs failed to exhaust their administrative remedies and/or their

Title VII claims now are time-barred;

Plaintiffs Section 1981 claims (Count One) for alleged discrimination

occurring before December 6, 2012 (i.e., four years before the filing of the

Complaint) should be dismissed with prejudice pursuant to Fed. R. Civ. P.

12(b)(6) as such claims are barred by the statute of limitations;

(Compl. p. 37-39.) Plaintiffs filed their Complaint on December 6, 2016 (see Dkt.
No. 1) and served it on January 3, 2017 (see Dkt. Nos. 5-8).
2
Because Defendants are moving to dismiss the Complaint in its entirety pursuant
to Fed. R. Civ. P. 12(b)(6) and/or for a more definite statement of Plaintiffs class
claims pursuant to Fed. R. Civ. P. 12(e), Defendants Answer to the Complaint is
stayed until after this Court rules on this Motion. See Fed. R. Civ. P. 12(a)(4)
([S]erving a motion under this rule alters [the time for serving a responsive
pleading] as follows: (A) if the court denies the motion . . . the responsive pleading
must be served within 14 days after notice of the courts action; or (B) if the court
grants a motion for a more definite statement, the responsive pleading must be
served within 14 days after the more definite statement is served.); Lawrence v.
Bank of America, N.A., 2016 WL 6678060, at *17 (N.D. Ga. June 23, 2016)
([A]ny Defendant who has filed a Motion to Dismiss is not required to file an
Answer until the Court issues a final ruling on its Motion to Dismiss that is not
dispositive of all claims.); Abrams v. CIBA Specialty Chems. Corp., 2008 WL
4183344, at *2 n.4 (S.D. Ala. Sept. 10, 2008) (The Federal Rules of Civil
Procedure are quite clear that the filing of a motion to dismiss or a motion for more
definite statement extends the deadline for filing an answer.).

2
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Plaintiffs Section 1981 disparate impact claims (Count One) should be

dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because Section 1981 does

not create a cause of action for disparate impact claims;

Plaintiffs class claims (Counts One and Three) should be dismissed

pursuant to Fed. R. Civ. P. 12(b)(6) or stricken pursuant to Fed. R. Civ. P.

12(f) and 23(d)(1)(D) because the Complaint (i) fails to comply with Local

Rule 23.1(A); (ii) does not allege an ascertainable class; (iii) does not allege

that Plaintiffs are adequate class representatives; and (iv) does not allege

common issues of law and fact; and

Alternatively, Defendants move pursuant to Fed. R. Civ. P. 12(e) and Local

Rule 23.1 for a more definite statement of Plaintiffs class definition and

individual and class claims (Counts One, Two, and Three) because the

claims are unascertainable.

I. INTRODUCTION

Plaintiffs assert sweeping claims for disparate treatment and/or disparate

impact race discrimination under Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000e et seq. (Title VII), and 42 U.S.C. 1981 (Section 1981) on

behalf of themselves and a vague, unascertainable putative class of:

[a]ll African-American persons employed by Defendants in salaried

positions and mid-level managerial positions (specifically, managerial

3
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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 . . . who have been, continue
to be, or may in the future be, adversely affected by Defendants
racially discriminatory employment policies and practices . . . .

(Compl. 17.) Yet Plaintiffs claims are merely conclusory, failing to put

Defendants on reasonable notice of the specific allegations being asserted against

them or upon which a plausible claim for relief is based. Without identifying any

specific policies or practices, Plaintiffs allege generally that all four Defendants

maintain racially-discriminatory written and unwritten policies and practices

regarding evaluations, compensation, and/or promotions. (Compl. 26.)

Plaintiff Celeslie Henley alleges that she is a former secretarial employee of

CNN, Inc. (Compl. 9), but does not allege that she is a member of the putative

class she seeks to represent. Plaintiff Ernest Colbert, Jr. alleges that he is a current

management employee of TBS, Inc. (Compl. 10.) While the Complaint names

four corporate defendants, Defendants are at a loss to determine exactly which

class claim(s) are being asserted against which Defendant(s),3 and which claim(s)

are brought individually or on behalf of the unascertainable, undefined class.

Plaintiff Henley also asserts an individual retaliation claim under Title VII, and

makes a vague reference to being discriminated against due to her sex and
3
There are no specific allegations of discriminatory conduct by TW or TSI.

4
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pregnancy. (Compl. 9, 78.)

As discussed below, Plaintiffs also assert Title VII claims that are barred by

the statutes of limitations. Specifically, Plaintiff Henley does not (and cannot)

allege that she timely filed a lawsuit regarding her Title VII claims. Plaintiff

Colbert does not (and cannot) allege that he timely filed an administrative charge,

much less that he exhausted his administrative remedies. Plaintiffs also purport to

bring claims for alleged discrimination over the last 20 years or more, but the

longest statute of limitations under Section 1981 is four years.

Defendants respectfully ask this Court to apply fundamental requirements of

federal law and procedure to the Complaint to dismiss, strike, or require a more

definite statement of the vague, imprecise claims and allegations contained therein.

II. PLAINTIFFS CLAIMS SHOULD BE DISMISSED OR STRICKEN

A. Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 23 Standards.

To survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, a complaint must

allege facts that, if true, 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)). A claim is plausible when the plaintiff alleges facts that

allow [ ] the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged. Id. A court need not accept legal conclusions or

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conclusions disguised as factual allegations. S. Pan Servs. Co. v. Harris, 2014 WL

11970540, at *2 (N.D. Ga. July 28, 2014) (citing Powell v. Thomas, 643 F. 3d

1300, 1302 (11th Cir. 2011)). A plaintiff must allege sufficient facts to raise a

right to relief above the speculative level. Burnett v. City of Jacksonville, FL, 376

F. Appx 905, 906 (11th Cir. 2010) (quoting Twombly, 550 U.S. at 555).

Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements do not suffice. Iqbal, 556 U.S. at 678.

Regarding class action allegations, Fed. R. Civ. P. 23(c)(1)(A) states that

[a]t an early practicable time . . . the court must determine by order whether to

certify the action as a class action. This early practicable time directive allows

courts to address a plaintiffs class action allegations when the complaint is facially

defective and definitively establishes that a class action cannot be maintained. See

Mills v. Foremost Ins. Co., 511 F.3d 1300, 1309 (11th Cir. 2008) (citing Jackson v.

Motel 6 Multipurpose, Inc., 130 F.3d 999, 1006 (11th Cir. 1997)) (In some

instances, the propriety vel non of class certification can be gleaned from the face

of the pleadings.). Furthermore, Fed. R. Civ. P. 23(d)(1)(D) expressly authorizes a

motion to strike class allegations: the court may issue orders that . . . require that

the pleadings be amended to eliminate allegations about representation of absent

persons and that the action proceed accordingly.

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B. Plaintiffs Title VII Individual and Class Claims (Counts Two and
Three) Are Time-Barred and Must Be Dismissed.

It is well-settled that a Title VII plaintiff must satisfy the statutes

administrative exhaustion requirement before filing a judicial complaint. Prior to

filing a Title VII action . . . a plaintiff first must file a charge of discrimination with

the EEOC. Gregory v. Ga. Dept of Human Res., 355 F.3d 1277, 1279 (11th Cir.

2004) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970)).

Indeed, [n]o 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.

Thomas v. Miami Dade Pub. Health Trust, 369 F. Appx 19, 22 (11th Cir. 2010);

Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999) (administrative

exhaustion is a jurisdictional prerequisite to Title VII claims). The purpose of Title

VIIs administrative exhaustion requirement is to give the EEOC the first

opportunity to investigate the alleged discriminatory practices to permit it to

perform its role in obtaining voluntary compliance and promoting conciliation

efforts. Gregory, 355 F.3d at 1279 (citing Evans v. U.S. Pipe & Foundry Co., 696

F.2d 925, 929 (11th Cir. 1983)).

Plaintiffs bear the burden of proving that they timely filed valid EEOC

charges and received statutory notice from the EEOC of their right to sue before

they filed their Title VII claims in this action. See Burnett, 376 F. Appx at 906

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(citing Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1567 (11th

Cir.1996); 42 U.S.C. 2000e-5(f)(1)); Rizo v. Ala. Dept of Human Res., 228 F.

Appx 832, 836 (11th Cir. 2007); Owens v. Omni Hotels Mgmt. Corp., 2012 WL

1454082, at *5 (N.D. Ga. Mar. 27, 2012). The Complaint contains no allegations

whatsoever that Plaintiffs filed timely charges of Title VII race discrimination

and/or retaliation against Defendants with the EEOC, much less that they received

notices of their right to sue from the EEOC and then timely filed this lawsuit.

Plaintiff Colbert has never filed a charge of discrimination with the EEOC

against any Defendant, including TBS, Inc. On May 30, 2014, Plaintiff Henley

filed an EEOC charge of race, sex, and age discrimination and retaliation against

TBS, Inc. arising from the termination of her employment on January 14, 2014.

See Exhibit 1.4 The EEOC issued its Dismissal and Notice of Rights for Plaintiff

4
Generally, if a court considers matters outside the pleadings when ruling on a
Fed. R. Civ. P. 12(b)(6) motion to dismiss, the motion must be treated as a Fed. R.
Civ. P. 56 motion for summary judgment. Horne v. Potter, 392 F. Appx 800, 802
n.1 (11th Cir. 2010) (citing Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116
F.3d 1364, 1371 (11th Cir. 1997)). A court, however, may consider documents
attached to the complaint and/or documents filed in connection with a motion to
dismiss without converting the motion to one for summary judgment if those
documents are central to the complaint and not in dispute. See Harris v. Ivax
Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999); see also Horne, 392 F. Appx at
802. Moreover, when considering a Fed. R. Civ. P. 12(b)(6) motion to dismiss for
failure to exhaust administrative remedies, it is proper for a judge to consider
facts outside of the pleadings and to resolve factual disputes so long as the factual
disputes do not decide the merits and the parties have sufficient opportunity to

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Henleys Charge on May 7, 2015. See Exhibit 2. Therefore, Plaintiff Henley had

until approximately August 5, 2015 (i.e., 90 days after May 7, 2015) to file a Title

VII lawsuit. See Patel v. Georgia Dept of Behavioral Health & Developmental

Disabilities, 517 F. Appx 750, 752 (11th Cir. 2013) (citing 42 U.S.C. 2000e-

5(f)(1); Green v. Union Foundry Co., 281 F.3d 1229, 1233-34 (11th Cir. 2002))

(plaintiff must file Title VII case within 90 days of receiving his EEOC notice of

right to sue). Yet, Plaintiff Henley did not file this Title VII lawsuit until December

6, 2016 (see Compl.), more than one year after her deadline. Plaintiff Henley is

now forever time-barred from bringing any Title VII claim against Defendants, and

her Title VII claims must be dismissed with prejudice. See Patel, 517 F. Appx at

752 (affirming dismissal of Title VII complaint as time-barred). Therefore, both

Plaintiffs individual Title VII claims must be dismissed. See Burnett, 376 F.

Appx at 907 (affirming dismissal of Title VII claims where plaintiff completely

failed to allege in her complaint that she exhausted her administrative remedies).

Plaintiffs Title VII class claims must also be dismissed. A plaintiff who

seeks to represent a class in a private Title VII suit must have standing to raise the

develop a record. Tillery v. U.S. Dept of Homeland Sec., 402 F. Appx 421, 424
(11th Cir. 2010) (quoting Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008)).
Thus, this Court may consider Exhibits 1 and 2 as they are undisputed
administrative records central to Plaintiffs Title VII claims and relevant to the
issue of Plaintiffs failure to exhaust their administrative remedies.

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class claims and must satisfy the procedural requirements of Title VII. Carter v.

W. Pub. Co., 225 F.3d 1258, 1263 (11th Cir. 2000) (citing Griffin v. Dugger, 823

F.2d 1476, 1482 (11th Cir. 1987)); see City of Hialeah, Fla. v. Rojas, 311 F.3d

1096, 1101 (11th Cir. 2002); Davis v. Infinity Ins. Co., 2016 WL 4507122, at *3

(N.D. Ala. Aug. 29, 2016); Bates v. United Parcel Serv., 511 F.3d 974, 985 (9th

Cir. 2007).

Here, Plaintiffs have not pled that they have standing to bring their

individual Title VII claims. Without standing to bring their individual Title VII

claims, Plaintiffs also lack standing to bring Title VII class claims, and those class

claims must be dismissed. See Davis, 2016 WL 4507122, at *3 (denying motion to

amend complaint on futility grounds; as plaintiff did not allege sufficient facts in

the proposed amended complaint to establish her standing for her individual Title

VII claims, she would also not be able to show that she had standing to raise those

claims on behalf of the putative class); Trevino v. Holly Sugar Corp., 811 F.2d

896, 906 (5th Cir. 1987) (plaintiff whose individual claim was dismissed no longer

had a nexus with the class, thus the motion for certification was properly denied).

C. Plaintiffs Section 1981 Claims (Count One) for Alleged

Discrimination Occurring Before December 6, 2012 (i.e., Four
Years Before the Filing of this Lawsuit) Must Be Dismissed or
Stricken.
Generally, a 1981 action must be filed within the four-year statute of

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limitations prescribed by 28 U.S.C. 1658. Chandler v. Volunteers of Am., N.

Ala., Inc., 598 F. Appx 655, 665 (11th Cir. 2015) (citing Baker v. Birmingham Bd.

of Educ., 531 F.3d 1336, 1338-39 (11th Cir. 2008)). As the Eleventh Circuit

recently explained:

Prior to 1991, we applied the most appropriate or analogous state

statute of limitations to claims brought under 1981. Here, that
would be Georgias two-year statute of limitations for personal injury
actions.

Congress has since enacted 28 U.S.C. 1658, which provides a four-

year statute of limitations for civil actions arising under federal
statutes enacted after December 1, 1990. In 1991, Congress amended
1981 to broaden the definition of the term make and enforce
contracts. Whereas prior to 1991 this phrase referred narrowly to
discrimination in the making and enforcement of contracts alone, . .
. after the 1991 amendment, the statute also covered post-formation
conduct, such as the imposition of discriminatory working conditions.
Thus, we apply a four-year statute of limitations to any 1981 claim
that is cognizable only because of the 1991 amendment and otherwise
apply the analogous state statute of limitations.

Grimes v. Bd. of Regents of Univ. Sys. of Georgia, 650 F. Appx 647, 651 (11th

Cir. 2016), cert. denied Grimes v. Todd, 2017 WL 69477 (U.S. Jan. 9, 2017)

(citations omitted).

To the extent Plaintiffs purport to assert Section 1981 individual and/or class

claims for race discrimination that fall within the pre-amendment version of

Section 1981 and allegedly occurred before December 6, 2014 (i.e., two years

before the filing of the Complaint), such claims are time-barred and should be

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dismissed or stricken from the Complaint pursuant to Fed. R. Civ. P. 12(b)(6),

12(f), or 23(d)(1)(D). Likewise, any Section 1981 claims that fall within the post-

amendment version of Section 1981 and allegedly occurred before December 6,

2012 (i.e., four years before the filing of the Complaint) are also time-barred and

should be dismissed or stricken from the Complaint pursuant to Fed. R. Civ. P.

12(b)(6) or 23(d)(1)(D).

D. Plaintiffs Disparate Impact Section 1981 Claims (Count One)

Must Be Dismissed or Stricken.
Defendants cannot discern whether Plaintiffs have sought to allege disparate

impact claims in the Complaint. To the extent Plaintiffs allege disparate impact in

support of their Title VII claims, as shown above, those claims are barred by the

statutes of limitations and by Plaintiffs failure to exhaust their administrative

remedies. Nor can Plaintiffs allege viable disparate impact claims under Section

1981, because the law is clear that Section 1981 claims require a showing of

discriminatory intent.

It is well settled that a showing of disparate impact through a neutral

practice is insufficient to prove a Section 1981 violation because proof of

discriminatory intent is essential. Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472

(11th Cir. 1999) (citing Gen. Bldg. Contractors Assn v. Pa., 458 U.S. 375, 388

(1982)); Spidell v. Publix Super Markets, Inc., 2016 WL 3543334, at *4 (N.D. Ala.

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June 29, 2016) (Section 1981 liability must be founded on purposeful

discrimination, and [a] showing of disparate impact through a neutral practice is

insufficient to prove a 1981 violation because proof of discriminatory intent is

essential.)). Therefore, Plaintiffs alleged individual and/or class claims based

upon a disparate impact theory of discrimination under Section 1981 must be

dismissed as a matter of law pursuant to Fed. R. Civ. P. 12(b)(6). See Price v.

M&H Valve Co., 177 F. Appx 1, 14 (11th Cir. 2006) (affirming dismissal of

Section 1981 disparate impact claim because only direct or inferential modes of

proving intentional discrimination are available); Ross v. Dept of Children Fla.,

2014 WL 12625122, at *4 (M.D. Fla. Apr. 28, 2014) (dismissing disparate impact

claim because Section 1981 requires proof of intentional discrimination and by its

nature a claim of disparate impact is unintentional); Cooper v. Elmore Cnty. Bd.

of Educ., 2012 WL 252410, at *8 (M.D. Ala. Jan. 26, 2012) (granting summary

judgment on plaintiffs disparate impact claim because Section 1981 requires a

showing of purposeful discrimination).

E. Plaintiffs Class Claims (Counts One and Three) Must Be

Dismissed or Stricken For Failure to Comply with Local Rule
23.1(A).
The Complaint does not even meet the basic pleading requirements of Local

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Rule 23.1(A).5 This rule establishes that class certification is proper only when

claims are brought in a representative capacity and when a plaintiff satisfies certain

enumerated, basic requirements. Huff v. DeKalb Cnty., Ga., 2006 WL 449153, at

*1 (N.D. Ga. Feb. 23, 2006) (J. Duffey).

Plaintiffs fail to include a Class Action Allegations section setting forth

allegations sufficient to comply with the basic requirements of Fed. R. Civ. P. 23.

Accordingly, any motion to certify a class based on this defective pleading

inevitably would have to be denied, and Plaintiffs class allegations should be

stricken. See Huff, 2006 WL 449153, at *1 (denying motion for class certification

where plaintiffs did not bring claims representative of a class, failed to style the

action as a Class Action, did not set forth allegations satisfying Fed. R. Civ. P.

23s requirements, and did not include a section titled Class Action Allegations);

Johnson v. Jaguar Cars, Inc., 2006 WL 1627125, at *2 (N.D. Ga. June 6, 2006)

(noting the courts previous denial of class certification because of plaintiffs

failure to comply with Local Rule 23.1); Burdette v. Fed. Exp. Corp., 1998 WL

190275, at *1 (N.D. Ga. Feb. 18, 1998) (dismissing class claims because (1) the

class definition was quite frankly, incomprehensible, violating Local Rule 23.1,

5
Local Rule 23.1(A)(2) provides: Under a separate heading titled Class Action
Allegations, the complaint shall provide [the allegations satisfying the
requirements for maintaining a class action under Fed. R. Civ. P. 23] . . . .

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and (2) the class action allegations showed that any common questions of fact or

law would be heavily outweighed by individualized inquiries);6 see also Koger v.

Texaco, Inc., 2007 WL 951752, at *1 n.1, *10 (N.D. Ga. Mar. 28, 2007) (treating

the action as a single-plaintiff lawsuit, because plaintiff did not comply with the

Local Rule 23.1).

F. Plaintiffs Class Claims (Counts One and Three) Must Be

Dismissed or Stricken Because the Putative Class is
Unascertainable.
It is well-settled that a plaintiff bears the burden of establishing all

prerequisites under the Federal Rules of Civil Procedure before a class action is

proper in the district court. Moore v. Walter Coke, Inc., 2012 WL 4731255, at *14

(N.D. Ala. Sept. 28, 2012) (citing Gilchrist v. Bolger, 733 F.2d 1551, 1556 (11th

Cir.1984); Walker v. Jim Dandy Co., 747 F.2d 1360, 1363 (11th Cir.1984)).

Foremost of the class action threshold requirements is that the plaintiff must

plead an ascertainable class: [C]ourts have universally recognized that the first

essential ingredient to class treatment is the ascertainability of the class. Id.

(emphasis in original) (citing Grimes v. Rave Motion Pictures Birmingham, L.L.C.,

264 F.R.D. 659, 663 (N.D. Ala. 2010)). Thus, before a court can even address Fed.

R. Civ. P. 23(a)s requirements of numerosity, commonality, typicality, and

6
See discussion of Wal-Mart v. Dukes, at Section H.

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adequacy to represent the class, the complaints class allegations must set the

parameters of the proposed class otherwise, the court should dismiss the class

allegations. Id. (citing Earnest v. Gen. Motors Corp., 923 F. Supp. 1469, 1473-74

(N.D. Ala. 1996) ([T]he class must meet a minimum standard of definiteness

which will allow the trial court to determine membership in the proposed class

and [f]ailure to meet this minimum standard entitles a court to dismiss the class

allegations and proceed with the action on an individual basis); John v. Natl Sec.

Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (Where it is facially apparent

from the pleadings that there is no ascertainable class, a district court may dismiss

the class allegation on the pleadings.)).

Plaintiffs proposed class is not only imprecise and unascertainable, it is

incomprehensible. First, Plaintiffs define the putative class they purport to

represent in varying (and inconsistent) ways:

Compl. 2, 62, 75: African-American salaried employees and mid-level

managerial employees.

Compl. 17: 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

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Turners 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). Plaintiffs reserve the right to amend the definition of the Class
following discovery.

Compl 19: alternately referencing all African-American employees and

the Class.

Compl. 26: alternately referencing African-American salaried employees

and mid-level managerial employees (specifically, managerial positions

inferior to the Director position) and all African-American employees.

Compl. 28, 31, 33, 34, 39, 44, 45, 47, 61: generally referencing all

African-Americans or all African-American employees.

Compl. 37, 81: African-American salaried employees.

Compl. 56, 80: African-Americans who have worked in mid-level

managerial positions.

Second, Plaintiffs definition of the putative class at Paragraph 17 is

impermissibly vague and prevents the Court and the parties from understanding

which of each of the Defendants employees fall within the class definition.

Describing the class as including African-American employees of Defendants in

salaried positions and mid-level managerial positions (specifically, managerial

positions inferior to the Director, Vice President, Senior Vice President positions)

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in the United States provides no clarity or guidance, much less definiteness, on

which specific positions in which of the hundreds of departments in which of the

four separate Defendant companies are at issue and would form the putative

nationwide class.

The Complaint fails to define salaried employees. Does salaried refer to

employees exempt from the FLSAs overtime requirements? Does salaried refer

to any employees, including non-exempt employees, who are paid a salary, as

opposed to being paid by the hour? The Complaint also fails to define mid-level

managerial positions. Which positions are in fact inferior to the Director, Vice

President, and Senior Vice President positions? Which positions are mid-level

managerial positions as opposed to lower-level managerial positions? These

positions might even differ for each of the four Defendants.

Significantly, the Complaint does not allege whether the named Plaintiffs

were employed in the salaried positions and/or mid-level managerial positions

contemplated by the class definition. (See Compl. 9-10, 42 (stating only that

Plaintiff Henley formerly worked for CNN, Inc. as an Executive Administrative

Assistant and that Plaintiff Colbert currently works for TBS, Inc. as a Senior

Manager, and previously as a mid-level Manager).) The Complaint does not

allege that Plaintiff Henley was a salaried employee or that she ever held a mid-

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level managerial position. The law is clear, however, that a class representative

must be a member of the class she seeks to represent. See, e.g., Gerber v. Delta

Airlines, Inc., 1996 WL 557853, at *5 (N.D. Ga. Aug. 6, 1996) (citing Machella v.

Cardenas, 653 F.2d 923, 927 (5th Cir.1981)) (It is axiomatic that to be an

adequate class representative, plaintiff must be a member of the class he seeks to

represent.); Gilchrist, 733 F.2d at 1555 (affirming denial of class certification

because plaintiff, a nonsupervisory employee, could not adequately represent a

class of supervisors). There are no allegations regarding the mid-level managerial

position held by named Plaintiff Colbert, except that he alleges he was previously

a manager in the Turner Entertainment Group. (Compl. 10.)

In sum, the class definition is unascertainable because it requires this Court

to make factual determinations in order to identify who falls within the class. See

Moore, 2012 WL 4731255, at *15 (citing Earnest, 923 F. Supp. at 1473-74;

Benefield v. Intl Paper Co., 270 F.R.D. 640, 642-25 (M.D. Ala. 2010))

(dismissing class claims because the proposed class was not ascertainable; the class

definition was too imprecise and required the court to make multiple factual

determinations before it could even reach the express Rule 23 requirements);

Lawson v. Life of the S. Ins. Co., 286 F.R.D. 689, 697-98 (M.D. Ga. Sept. 28,

2012) (granting defendants motion to strike class claims because the sheer

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number of factual determinations that would have to be made were incongruent

with the nature of a class action lawsuit); Mills v. Foremost Ins. Co., 269 F.R.D.

663, 682 (M.D. Fla. Sept. 29, 2010) (denying motion to certify a class because the

class definition resulted in the existence of individual inquires that were too

great); Adair v. Johnston, 221 F.R.D. 573, 578 (M.D. Ala. Apr. 27, 2004)

(denying class certification where individualized fact-finding would be

necessary to identify class members).

G. Plaintiffs Class Claims (Counts One and Three) Must Be

Dismissed or Stricken Because Plaintiffs Are Inadequate Class
Representatives.
In addition to the vague definition of the class, the allegations in the

Complaint make clear that Plaintiffs cannot fairly and adequately protect the

interests of the class, as required by Fed. R. Civ. P. 23(a)(4).7 Courts hold that the

adequacy of representation analysis under Fed. R. Civ. P. 23(a)(4) encompasses

two separate inquiries: (1) whether any substantial conflicts of interest exist

between the representatives and the class; and (2) whether the representatives will

adequately prosecute the action. S. Pan Servs. Co. v. Harris, 2014 WL 11970540,

at *3 (N.D. Ga. July 28, 2014) (citing Valley Drug Co. v. Geneva Pharm., Inc., 350

7
Plaintiffs allege that they have retained skilled and experienced counsel to
represent them in class litigation without providing any specific information
regarding counsels class action experience. (Compl. 21.)

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F.3d 1181, 1189 (11th Cir. 2003)).

As discussed above, the named Plaintiffs cannot be adequate class

representatives if they do not even fall within the defined class. Moreover, the

allegations of the Complaint illustrate that there are substantial conflicts of interest

between the two named Plaintiffs and the alleged classes they seek to represent.

The Complaint sets up potential class conflicts based upon gender by

alleging that African-American males are especially discriminated against by

Defendants (Compl. 3, 4, 5), and by also alleging that Plaintiff Henley was

discriminated against based upon her gender and her pregnancy. (Compl. 9.)

Plaintiff Henleys gender and pregnancy discrimination claims are in conflict with

the claims of the African-American males who were allegedly especially

discriminated against by Defendants. These allegations create a larger conflict

between the African-American males and African-American females who are

alleged to be part of the same class.

In addition, both Plaintiffs held non-management and management

positions, respectively,8 and the Complaint fails to allege how their interests and

those of the putative class members would be aligned. There will inevitably be

8
Plaintiff Henley alleges she was an administrative assistant at CNN, Inc., while
Plaintiff Colbert alleges he is a Senior Manager with TBS, Inc. (Compl. 9-10,
42.)

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conflicts among a class comprised of supervisory employees and those they

supervise. See Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 571 (6th Cir. 2004)

(affirming denial of class certification; plaintiffs did not show how hourly and

salaried employees would have the same interests); Wagner v. Taylor, 836 F.2d

578, 591, 595 (D.C. Cir. 1987) (affirming denial of class certification in race

discrimination case; Supervisory employees are often inappropriate

representatives of nonsupervisory employees because the structure of the

workplace tends to cultivate distinctly different interests between the two groups . .

. indeed, the very individual on whose behalf injunctive relief is sought in this case

was allegedly discharged by a black employee who is a potential member of the

class.); see also Stone v. First Union Corp., 203 F.R.D. 532, 543 (S.D. Fla. 2001)

(decertifying an ADEA collective action, in part, because the class mixed

employees with different job titles and from all levels of the organization).

These significant conflicts will prevent Plaintiffs from fairly and adequately

protecting the interests of the class. Thus, their class claims should be dismissed or

stricken.

H. Plaintiffs Class Claims (Counts One and Three) Must Be

Dismissed or Stricken Because the Complaint Does Not Allege
Common Issues of Law Or Fact.
Plaintiffs class allegations as pled in the Complaint show that any common

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questions of fact or law, required by Fed. R. Civ. P. 23(a)(2) for class certification,

will be grossly outweighed with individualized inquiries. Plaintiffs allege that

Defendants written and unwritten policies and practices regarding evaluation,

compensation, advancement in leadership and promotion subject the named

Plaintiffs and the Class to ongoing disparate treatment, and that this

discrimination represents a company-wide pattern and practice, rather than a series

of isolated incidents. (Compl. 6.) Plaintiffs, however, do not identify a specific

discriminatory employment policy or practice that ties together these otherwise

individual, discrete employment decisions. See Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338, 353-54 (2011).

Plaintiffs repeatedly reference generic, non-specific written and unwritten

policies and practices of discrimination, without allegations that any such policies

and/or practices uniformly exist across Defendants. (See Compl. 3, 5, 6, 11, 13,

17, 19, 26, 45, 48, 52, 61, 63, 80, 81.) Although the Complaint purports to allege

questions of law and fact common to the Class in Paragraph 19, the listing of

these questions is not enough to meet the standard set forth in Dukes:

The crux of this case is commonalitythe rule requiring a plaintiff to

show that there are questions of law or fact common to the class.
Rule 23(a)(2). That language is easy to misread, since [a]ny
competently crafted class complaint literally raises common
questions. [. . .]

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What matters to class certification ... is not the raising of common

questionseven in drovesbut, rather the capacity of a classwide
proceeding to generate common answers apt to drive the resolution of
the litigation. Dissimilarities within the proposed class are what have
the potential to impede the generation of common answers.

564 U.S. at 349-50 (citations omitted).

III. ALTERNATIVELY, PLAINTIFFS SHOULD BE ORDERED TO

PROVIDE A MORE DEFINITE STATEMENT OF THEIR
INDIVIDUAL AND CLASS CLAIMS (COUNTS ONE, TWO AND
THREE)

Under Fed. R. Civ. P. 12(e), this Court has broad discretion to order a more

definite statement. Unless cases are pled clearly and precisely, issues are not

joined, discovery is not controlled, the trial courts docket becomes unmanageable,

the litigants suffer, and society loses confidence in the courts ability to administer

justice. Anderson v. Dist. Bd., 77 F.3d 364, 367 (11th Cir. 1996). The Complaint

is poorly pled, and the individual and class claims are inextricably intertwined,

making all of Plaintiffs claims impossible to answer. In the alternative to

dismissing or striking Plaintiffs individual and class claims, Defendants

respectfully request that this Court order a more definite statement of the class

definition and of the individual and class allegations in a manner that meets Fed. R.

Civ. P. 8(a)s and Local Rule 23.1(A)s requirements. See, e.g., Davis v. Coca-

Cola Bottling Co. Consolidated, 516 F.3d 955, 984 (11th Cir. 2008), abrogated on

other grounds by Iqbal, 556 U.S. 662 and Twombly, 550 U.S. 544 (noting that

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when faced with a complaint purporting to combine in one count multiple claims

of multiple plaintiffs, the necessity for moving for a more definite statement was

starkly apparent on reading the complaint).

IV. CONCLUSION
For all of the above reasons, Defendants respectfully request that this Court

(i) dismiss with prejudice Plaintiffs individual and class Title VII claims (Counts

Two and Three); (ii) dismiss or strike Plaintiffs individual and class Section 1981

claims (Count One) for alleged discrimination that occurred outside the statute of

limitations period(s); (iii) dismiss or strike Plaintiffs individual and class Section

1981 disparate impact claims (Count One); and (iv) dismiss or strike Plaintiffs

class claims (Counts One and Three), or in the alternative, order Plaintiffs to

provide a more definite statement of the class definition and their individual and

class claims (Counts One, Two, and Three).

Respectfully submitted, this 7th day of February, 2017.

/s/ Leslie A. Dent

Leslie A. Dent, GA Bar No. 218566
ldent@littler.com
Dionysia Johnson-Massie, GA Bar No.
393323
djmassie@littler.com
Amy M. Palesch, GA Bar No. 866827
apalesch@littler.com
LITTLER MENDELSON, P.C.
3344 Peachtree Road N.E., Suite 1500

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Case 1:16-cv-04506-WSD Document 17-1 Filed 02/07/17 Page 26 of 29

Atlanta, GA 30326.4803
Telephone: 404.233.0330
Facsimile: 404.233.2361

James A. Lamberth, GA Bar No. 431851

james.lamberth@troutmansanders.com
TROUTMAN SANDERS LLP
Suite 5200, Bank of America Plaza
600 Peachtree Street, N.E.
Atlanta, GA 30308-2216
Telephone: 404.885.3000
Facsimile: 404.962.6611

Attorneys for Defendants Turner

Broadcasting System, Inc., Time Warner
Inc., Cable News Network, Inc., and
Turner Services, Inc.

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LOCAL RULE 7.1D CERTIFICATION

Pursuant to Local Rule 7.1D, the undersigned certifies that this motion

complies with the font requirements of Local Rule 5.1C because this motion is

prepared in Times New Roman, 14-point font.

/s/ Leslie A. Dent

Leslie A. Dent
Attorneys for Defendants

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

Celeslie Henley and Ernest Colbert,

Jr.,

Plaintiffs,
CIVIL ACTION FILE
v.
NO. 1:16-cv-04506-WSD
Turner Broadcasting System, Inc.,
Time Warner Inc., Cable News
Network, Inc., and Turner Services,
Inc.,

Defendants.

CERTIFICATE OF SERVICE
I hereby certify that on February 7, 2017, I electronically filed the foregoing
DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF THEIR
MOTION TO DISMISS, STRIKE, AND/OR FOR MORE DEFINITE
STATEMENT OF PLAINTIFFS COMPLAINT with the Clerk of the Court using
the CM/ECF system which sent notification of such filing to the following:

Daniel R. Meachum
Daniel R. Meachum & Associates, LLC
44 Broad Street NW, Suite 805
Atlanta, GA 30303
dmeachum@dmeachumlaw.com

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Mario Bernard Williams

Williams Oinonen, LLC
44 Broad Street NW, Suite 200
Atlanta, GA 30303
mario@goodgeorgialawyer.com

James E. Voyles
The Voyles Milhollin Law Firm
600 Village Trace, Suite 200
Marietta, Georgia 30067
jvoyles@voyleslaw.com

Attorneys for Plaintiffs

/s/ Leslie A. Dent

Leslie A. Dent
Attorneys for Defendants

29