Molette v. Advanced Integration Technology LP

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DOUGLAS MOLETTE, )
)
Plaintiff, )
)
v. ) CIVIL ACTION: 24-248-TFM-MU
)
ADVANCED INTEGRATION )
TECHNOLOGY, LP, )
)
Defendant. )
REPORT AND RECOMMENDATION
This matter is before the Court on Defendant’s Motion to Dismiss (Doc. 23),
Plaintiff’s Response (Doc. 34), and Defendant’s Reply (Doc. 35) and Plaintiff’s Motion to
Amend the Complaint (Doc. 38) and Defendant’s Response (Doc. 39). This matter has
been referred to the undersigned Magistrate Judge for entry of a report and
recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen LR 72(a)(2)(S).
(Doc. 3). Upon consideration of all relevant filings, the undersigned recommends that
Plaintiff’s Motion to Amend be DENIED and Defendant’s Motion to Dismiss be GRANTED
IN PART AND DENIED IN PART.
I. Background and Factual Allegations
On July 19, 2024, Plaintiff Molette filed his complaint, pro se, alleging
discrimination and retaliation by his employer,1 AIT, on the basis of race (the “Original
1 At no point in his filings does Molette state that he is no longer employed by AIT. AIT
notes in the instant Motion to Dismiss that “Molette is merely a former disgruntled
employee.” (Doc. 23, PageID.228). The Court is not aware when or under what
circumstances Molette may have left his employment with AIT.
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Complaint”). (Doc. 1). On August 16, 2024, AIT filed a Motion to Dismiss Pursuant to Fed.
R. Civ. P. 12(b)(6) (the “First Motion to Dismiss”). (Doc. 6). On September 13, 2024,
Molette filed his Response to the First Motion to Dismiss (Doc. 16), and on September
19, 2024, he filed an Amended Response. (Doc. 17). Molette did not seek to amend his
Original Complaint or add any additional parties at that time. On November 13, 2024, the
undersigned issued an order finding the Original Complaint deficient in several respects,
and, as Molette is proceeding pro se, the Court allowed him to amend his complaint and
provided instructions for him to follow to clarify his allegations and to comply with the
general rules of pleading. (Doc. 19).
On December 10, 2024, Molette filed his First Amended Complaint. (Doc. 20). The
First Amended Complaint did not add any additional parties. On January 16, 2024, AIT
filed its Motion to Dismiss Molette’s First Amended Complaint (the “Second Motion to
Dismiss”). (Doc. 23). On February 24, 2025, Molette filed his Response to AIT’s Second
Motion to Dismiss but did not request leave to amend his complaint or add any additional
parties or claims. (Doc. 34). On May 14, 2025, while the Second Motion to Dismiss was
still pending, Molette filed the Motion to Amend his complaint to add two additional parties,
HWX Enterprises (“HWX”) and Airbus U.S. A220, Inc. (“Airbus”). (Doc. 38). AIT filed its
Response in Opposition to the Motion to Amend on May 29, 2025. (Doc.39).
Currently, the First Amended Complaint (Doc. 20) is the operative complaint, as it
replaced the Original Complaint.2 Unfortunately, the First Amended Complaint does not
2 “As a general matter, ‘[a]n amended pleading supersedes the former pleading; the
original pleading is abandoned by the amendment, and is no longer a part of the pleader's
averments against his adversary.’” Pintando v. Miami-Dade Hous. Agency, 501 F.3d
1241, 1243 (11th Cir. 2007) (per curiam) (quoting Dresdner Bank AG, Dresdner Bank AG
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follow the Court’s instructions to incorporate all information into numbered paragraphs
and is difficult to follow. Accurate references to allegations contained in the First Amended
Complaint are likewise difficult. Nonetheless, the undersigned will outline what appear to
be the relevant allegations in the First Amended Complaint as well as the attached
exhibits. Molette asserts two counts in this action: Count I asserts claims under Title VII
of the Civil Rights Act of 1964 for both race discrimination and retaliation. Count II asserts
claims under 42 U.S.C. § 1981 only for retaliation. (Doc 20, PageID.182-183).
Molette states that he is an “African male” and a “state license master electrician
with over 35 years experience.” (Doc. 20, PageID.171). He accepted a job with AIT as a
second shift PLC technician at the Airbus manufacturing facility in Mobile, Alabama,
around November 15, 2022, at a rate of $30 per hour. (Doc. 20, PageID.171). Molette
then details numerous issues he had working with another PLC technician, a white male,
Stuart Bolen. (Doc. 20, PageID.171-72). In response to these issues, Molette asked AIT
manager, Lew Childre (white male), “why he was being treated differently.” (Doc. 20,
PageID.172). Molette does not say he complained to Childre about being treated
differently because of his race. On August 8, 2023, Boris Kipnis (white male), the
customer service director, told the shop employees that Childre had been dismissed.
(Doc. 20, PageID.172).
On August 14, 2023, Molette emailed Sarah Gieser in HR and Kipnis his resume
to apply for the maintenance manager position. (Doc. 20, PageID.173). Molette met with
in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210, 1215 (11th Cir. 2006) (citation
and quotation omitted)). See also, e.g., Fritz v. Standard Sec. Life Ins. Co. of New York,
676 F.2d 1356, 1358 (11th Cir. 1982) (“Under the Federal Rules, an amended complaint
supersedes the original complaint.”).
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Kipnis for an interview around August 15, 2023. (Doc. 20, PageID.173). The following
allegations are not entirely clear, but Molette seems to allege that Kipnis told him “he
knows he has to be aware of what the face looks like that represents the company. He
will probably report back saying Molette is not a good fit, plus the company already knows
who Kipnis wants to be the next manager.” (Doc. 20, PageID.173). Around this time,
Molette finds out that Bolen, another PLC technician, is making $35 per hour. (Doc. 20,
PageID.173). Molette asks Bolen what his starting pay was, and he says it was $34 per
hour. (Doc. 20, PageID.173). Molette then asks Kipnis “for an evaluation concerning a
pay increase.” (Doc. 20, PageID.173). Kipnis says he will consult with HR and get back
to Molette. (Doc. 20, PageID.173). Molette then states “[a]t this point, Mr. Molette notified
HR that he would file a race discrimination complaint against AIT.” (Doc. 20, PageID.173).
Molette states that Kipnis never got back to him about his request before Kipnis retired
and states that HR says “they were never told about a pay increase request.” (Doc. 20,
PageID.173).
Molette then describes how, around August 24, 2023, certain other white male
employees, including a manager, told Kipnis “that he needed to do something about Mr.
Molette’s appearance because he wore his hair in braids and did not look professional.”
(Doc. 20, PageID.173). Molette says Kipnis responded by saying “he has no problem with
how Mr. Molette wears his hair, but I see you do.” (Doc. 20, PageID.173). Molette states
that about two weeks later, while Kipnis was having lunch with the same white male
employees, the first shift lead technician, Wayne Dunnam, told Kipnis “I don’t care who
you hire for the new [manager] job as long as it is not Douglas [Molette].” (Doc. 20,
PageID.173-74). Molette says Kipnis responded “You do not have to worry about that. He
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will not be.” (Doc. 20, PageID.174). The manager, John Hamilton, then went back to the
shop “to brag” about how Dunnam had “handled his business” with Kipnis about Molette
being promoted. (Doc. 20, PageID.174).
About a month later, Molette says he asked the VP of business, William Pallante
(white male), who was taking over Kipnis’s position, if he could take on additional duties
and responsibilities. (Doc. 20, PageID.174). Pallante told Molette to wait until a new
manager was “settled in.” (Doc. 20, PageID.174). Molette states he told Pallante at
another time “that he felt he was being mistreated because he was denied whenever he
asked to come into work early.” (Doc. 20, PageID.174). Molette was angry when Pallante
did not respond to his concerns and notes that three white employees were allowed to
come into work one to two hours early five days a week. (Doc. 20, PageID.174). In
response, around November 14, 2023, Molette sent a complaint to the Airbus Open Line.
(Doc. 20, PageID.174).
In December 2023, Molette learned a new manager, Bradley Drake (white male)
had been hired. (Doc. 20, PageID.175). Molette says he told Drake “that he felt he was
being treated unfairly because he was denied the opportunity to come in to work early.”
(Doc. 20, PageID.181). Molette also describes his ongoing problems with the first shift
technician, Bolen, not giving him access to certain PLC software. (Doc. 20, PageID.175).
In January 2024, a meeting was held with Molette, Bolen, and Drake to address the issue,
but Molette felt the issue was not properly resolved while Bolen was unfairly portrayed by
Drake as having resolved the issue. (Doc. 20, PageID.175-6).
Molette’s allegations then jump back to 2023, and he states that “[b]ecause Mr.
Molette was being mistreated, he filed a discrimination complaint with the Delaware
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Department of Labor in August of 2023.” (Doc. 20, PageID.176). Molette later states that
the complaint was filed “[o]n or around August 2023.” (Doc. 20, PageID.182). Molette also
states that he “notified Airbus, AIT’s customer, about his discrimination complaint in
December of 2023 in hopes that Airbus would intervene to stop the unfair treatment he
was receiving.” (Doc. 20, PageID.176). Molette later says he notified Airbus of his
discrimination complaint “[i]n or around December 2023 and March 2024.” (Doc. 20,
PageID.182).
In April 2024, Molette was given his 2023 year-end performance evaluation by
Drake, who said that Molette’s performance was “average”, and, as a result, he received
a pay increase of 1.5%. (Doc. 20, PageID.176). Molette complained about his pay
increase because Bolen, also a PLC technician, received a 5% increase. Molette alleges
that “[p]eople who knew about the discrimination in the shop and said nothing also
received a higher evaluation.” (Doc. 20, PageID.176). Molette contacted HR to dispute
his evaluation and during his meeting with HR, Erica Melton told Molette she knew that
he had filed a complaint with Airbus and “[s]he wants Mr. Molette to stop discussing
discrimination, and Mr. Molette will not receive a higher evaluation.” (Doc. 20,
PageID.176).
Around June 2024, Molette was “written up” for violating a safety policy and then
scheduled to have training on that policy. (Doc. 20, PageID.177). Molette completed the
training on July 12, 2024. (Doc. 20, PageID.177). Molette says that AIT had never offered
him training on the safety policy, and he believes “the write-up was retaliation for
complaining to the customer Airbus about discrimination.” (Doc. 20, PageID.177).
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Most of the above allegations are taken from Molette’s “Introduction.” Molette
repeats them in his “Factual Allegations” with some minor details added. Molette then
includes additional statements in his “Statement of Claim” that provide insight into the
bases of his discrimination and retaliation claims. Specifically, Molette claims that AIT
owes Molette for the difference in his $30 per hour pay and Bolen’s $34 per hour starting
pay, indicating that Molette is attempting to pursue a claim for race discrimination based
on his pay compared to a similarly situated white co-worker. (Doc. 20, PageID.183).
Molette also claims damages as a result of not receiving the promotion to manager, while
AIT instead promoted, Drake, a white employee, who Molette says was less qualified than
him, indicating he is attempting to pursue a claim for race discrimination based on failure
to promote. (Doc. 20, PageID.184). Finally, Molette states AIT retaliated against him when
he was written up for violating the safety policy without AIT having provided him prior
training. (Doc. 20, PageID.184). In his Statement of Claim, Molette does not specify the
protected activity that prompted the retaliation, but this statement and the First Amended
Complaint as a whole indicate that he is attempting to purse a claim for retaliation based
on a protected activity.
Molette includes forty pages of documents as exhibits to his First Amended
Complaint. (Doc. 20-1). The documents include two right to sue letters, letters—one
issued on April 29, 2024, with Charge No. 425-2024-01066 (the “Alabama Right to Sue
Letter”) and the second issued on July 9, 2024, with Charge No. 17C-2024-00006 (the
“Pennsylvania Right to Sue Letter”)3. (Doc. 20-1, PageID.186-87). Molette did not provide
3 It appears that the Pennsylvania Right to Sue Letter issued by the EEOC’s Philadelphia
District Office was in response to the complaint Molette alleges he filed with the Delaware
Department of Labor in August 2023.
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the underlying EEOC charges he filed that prompted these right to sue letters, nor have
they been provided by AIT, so it is unclear what allegations relate to each right to sue
letter. The Alabama Right to Sue Letter states the charge was dismissed because the
alleged discriminatory acts were outside the statute of limitations. (Doc. 20-1,
PageID.186). The exhibits also include, among other things, Molette’s resume, his
paystub from AIT for November 21, 2022 through December 4, 2022, showing that he
was paid $30 per hour, the AIT job description for a PLC technician that Molette signed
on November 14, 2022, a paystub for Stuart Bolen from HWX for June 1, 2020, through
June 14, 2020, showing that he was paid $34 per hour, and the HWX job description for
a PLC technician that Bolen signed on May 21, 2020. (Doc. 20-1, PageID.190-207).
Molette’s Motion to Amend the Complaint includes a proposed second amended
complaint (the “Proposed Complaint”), which closely restates the allegations in the First
Amended Complaint and simply adds the following claims against Airbus and HWX in the
“Statement of Claim” section:
HWX Enterprises participated in AIT, paying Mr. Molette less money than
his white male counterpart for the same job because he is black.
Airbus U.S. A220, Inc. knew and allowed AIT to pay Mr. Molette less money
than his white male counterpart for the same job and promoted a white male
to be manager when Mr. Molette had all the credentials to be manager
because he is black.
(Doc. 38, PageID.277).
II. Standard of Review
A. Motion to Amend
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Federal Rule of Civil Procedure 15 governs the amendment and supplementation of
pleadings in federal court. Under Rule 15(a)(1), parties may amend a pleading once as
a matter of course:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days
after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier.
Fed. R. Civ. P. 15(a)(1)(A)-(B). In all other cases, amendment is only permitted with the
opposing party’s consent or the court’s leave. Fed. R. Civ. P. 15(a)(2). However, leave to
amend should be given freely “when justice so requires.” Id. See Foman v. Davis, 371
U.S. 178, 182 (1962) ("In the absence of any apparent or declared reason—such as
undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.—the leave
sought should, as the rules require, be 'freely given.'").
Generally, before a pro se plaintiff's complaint is dismissed for failure to state a
claim, he must be afforded an opportunity to amend his complaint. Silva v. Bieluch, 351
F.3d 1045, 1048-49 (11th Cir. 2003). Amendment is not warranted, however, “where
further amendment would be futile.” Silberman v. Miami Dade Transit, 927 F.3d 1123,
1133 (11th Cir. 2019) (citations omitted). An opportunity to amend is futile if the amended
complaint would “still [be] subject to dismissal.” Burger King Corp. v. Weaver, 169 F.3d
1310, 1320 (11th Cir. 1999) (citations omitted).
B. Motion to Dismiss
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In deciding a motion to dismiss under Rule 12(b)(6) for “failure to state a claim
upon which relief can be granted,” the Court must construe the complaint in the light most
favorable to the plaintiff, “accepting all well-pleaded facts that are alleged therein to be
true.” E.g., Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th Cir. 2013). “Fed. R.
Civ. P. 8(a)(2) requires that a pleading contain ‘a short and plain statement of the claim
showing that the pleader is entitled to relief’ in order to give the defendant fair notice of
what the claim is and the grounds upon which it rests.” Am. Dental Ass'n v. Cigna Corp.,
605 F.3d 1283, 1288 (11th Cir. 2010) (quotation omitted). “ ‘While a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.’ ” Id. at 1289 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[T]o
survive a motion to dismiss, a complaint must now contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting
Twombly, 550 U.S. at 570). While this “plausibility standard is not akin to a ‘probability
requirement’ at the pleading stage…the standard ‘calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence’ of the claim.” Id. (quoting
Twombly, 550 U.S. at 556). Pleadings by pro se litigants “are held to a less stringent
standard than pleadings drafted by attorneys and will, therefore, be liberally construed.”
Evans v. Ga. Reg'l Hosp., 850 F.3d 1248, 1253 (11th Cir. 2017) (citation and internal
quotations omitted); see also S.E.C. v. Elliott, 953 F.2d 1560, 1582 (11th Cir. 1992)
(stating that the court should use “common sense” when interpreting pro se pleadings).
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In determining whether a claim is stated, the court “must accept the factual
allegations in a complaint as true and construe them in the light most favorable to the
plaintiff.” Almanza v. United Airlines, Inc., 851 F.3d 1060, 1066 (11th Cir. 2017).
“However, conclusory allegations, unwarranted factual deductions or legal conclusions
masquerading as facts will not prevent dismissal.” Davila v. Delta Airlines, Inc., 326 F.3d
1183, 1185 (11th Cir. 2003). Iqbal “suggested that courts considering motions to dismiss
adopt a ‘two-pronged approach’ in applying these principles: 1) eliminate any allegations
in the that are merely legal conclusions; and 2) where there are well-pleaded factual
allegations, ‘assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.’ ” Am. Dental Ass'n., 605 F.3d at 1290 (quoting Iqbal, 556 U.S. at
679).
While the court must usually limit its review and consideration on motion to dismiss
to the complaint itself and exhibits attached to it, a “court may consider an extrinsic
document if it is (1) central to the plaintiff’s claim, and (2) its authenticity is not challenged.”
SFM Holdings, Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010).
“[A] Rule 12(b)(6) motion to dismiss is to be determined only on the facts alleged within
the four corners of the complaint and the documents attached to the complaint or directly
referred to in the complaint.” Scottsdale Ins. Co. v. ULGM, Inc., No. 14-21084-CIV, 2014
WL 11906638, at *1 (S.D. Fla. July 14, 2014)).
III. Legal Analysis
A. Motion to Amend
Molette’s time to amend as a matter of course under Rule 15 has passed, and AIT
objects to Molette’s amendment at this juncture. Therefore, Molette may only amend with
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the Court’s leave. While leave should be “freely given” in many circumstances, Molette’s
attempt to amend to add additional parties comes for the first time after one previous
amendment and two responses to AIT’s motions to dismiss, none of which expressed any
indication that he wished to add additional parties. Moreover, the Proposed Complaint
standing alone – not considering statements made in the Motion to Amend – does not
allege sufficient facts to make HWX or Airbus proper parties to this suit. Finally, even if
the Court did consider the statements made in Molette’s Motion to Amend regarding HWX
and Airbus and their relation to AIT, those allegations would still be insufficient to state a
claim against them, making the proposed amendment to add HWX and Airbus futile.
“A Title VII workplace discrimination claim can only be brought by an employee
against his employer.” Peppers v. Cobb Cnty., Georgia, 835 F.3d 1289, 1297 (11th Cir.
2016). Similarly, a § 1983 claim asserting employment discrimination can only be brought
against a plaintiff’s employer. See Foy v. Pat Donalson Agency, 946 F. Supp. 2d 1250,
1266-67 (N.D. Ala. 2013). Molette asserts in his Motion to Amend that HWX and Airbus
are liable with AIT under a “joint employer” theory of liability and seeks to add them as
parties to this action. (Doc. 38, PageID.263-64). The basis for finding that two or more
entities are joint employers “is simply that one employer while contracting in good faith
with an otherwise independent company has retained for itself sufficient control of the
terms and conditions of employment of the employees who are employed by the other
employer” so that even though the two employers are in fact separate entities, “they share
or co-determine those matters governing the essential terms and conditions of
employment.” Virgo v. Riviera Beach Assoc., Ltd., 30 F.3d 1350, 1360 (11th Cir.1994)
(quoting National Labor Relations Board v. Browning–Ferris Industries, 691 F.2d 1117,
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1122 (3d Cir.1982)). Courts usually make such a determination by analyzing: (1) the
means and manner of the plaintiff's work performance; (2) the terms, conditions, or
privileges of the plaintiff's employment; and (3) the plaintiff's compensation. Kaiser v.
Trofholz Techs., Inc., 935 F. Supp. 2d 1286, 1293 (M.D. Ala. 2013) (citing Llampallas v.
Mini–Circuits, Inc., 163 F.3d 1236, 1245 (11th Cir.1998)).
“Courts usually determine whether a defendant is a joint employer at the summary
judgment stage because such a determination requires a factual determination.” Key v.
Hyundai Motor Mfg., Alabama, LLC, No. 2:19-CV-767-ECM, 2021 WL 3909663, at *8
(M.D. Ala. Aug. 31, 2021). “Therefore, at the motion to dismiss stage, the Court is limited
to considering whether a plaintiff has alleged sufficient facts that the defendant had
enough control to plausibly be a joint employer.” Id. Here, the Court finds these
considerations support denying Molette’s Motion to Amend as futile, because the facts as
alleged in the Proposed Complaint are wholly insufficient to support a conclusion that
either HWX or Airbus had enough control over Molette to plausibly be a joint employer
with AIT. As noted above, Molette’s new allegations in the Proposed Complaint regarding
HWX and Airbus are limited to those in the Statement of Claim and are simply conclusory
allegations of discrimination. Nowhere in the Proposed Complaint has Molette alleged
that either HWX or Airbus had control over the terms or conditions of his employment.
Even if the Court were to consider the statements that Molette includes in support
of his request to amend the complaint, those would still fall short of a showing of the
control necessary to establish a joint employment relationship. Regarding Airbus, Molette
states in his Motion to Amend that “Airbus has the right to block Mr. Molette from entering
their property if they find something they do not like. Airbus also has the right to suspend
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a person’s badge. This means Mr. Molette would not be able to work. Therefore, Airbus
is a joint employer.” (Doc. 38, PageID.264). Airbus is not rendered a joint employer simply
because it owns and has control over the premises where Molette works, as an employee
of AIT. There are no allegations that Airbus and AIT share or co-determine any matters
governing the essential terms and conditions Molette’s employment. See Virgo, 30 F.3d
at 1360.
Regarding HWX, Molette states in his Motion to Amend that “HWX Enterprise, a
temporary staffing agency, hired white male Stuart Bolen and referred Black male
Douglas Molette to AIT…HWX Enterprise did not tell Mr. Molette about a pay scale or
stop AIT from offering him a lower pay.” (Doc. 38, PageID.264). As noted in the First
Amended Complaint, Molette alleges that Bolen, also a PLC technician, was being paid
a higher hourly rate than him and was paid a higher starting hourly rate. But the fact that
a staffing agency paid Molette’s white counterpart a higher hourly rate does not
automatically make the staffing agency liable for any alleged discrimination as Molette
seems to assert. While it is possible that a staffing agency could, under certain
circumstances, be liable for the discriminatory conduct of its employer client, it must first
be established that the staffing agency and the employer are joint employers – a
prerequisite that Molette’s allegations do not establish. Here, Molette is an employee of
AIT and not the staffing agency. Any involvement of HWX regarding Molette’s
employment is limited to vague allegations that HWX “referred” Molette to AIT or was
“used to hire” Molette. (Doc. 38, PageID.264). There are no allegations that HWX has
any control over: (1) the means and manner of Molette’s work performance; (2) the terms,
conditions, or privileges of Molette’s employment; and (3) Molette’s compensation. See
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Kaiser, 935 F. Supp. 2d at 1293. Therefore, even if the Court allowed Molette to amend
his complaint to include the statements included within his Motion to Amend – allegations
that are not currently in the Proposed Complaint – they would still be insufficient to find
either Airbus or HWX was a joint employer with AIT. Accordingly, the undersigned finds
that Plaintiff should not be permitted to file an amended complaint, which would be the
third complaint in this matter, and recommends denial of the Motion to Amend.
B. Motion to Dismiss
a. Count I – Title VII – Discrimination and Retaliation
Count I of the First Amended Complaint asserts claims under Title VII for race
discrimination and retaliation. AIT’s first grounds for dismissal of these claims is that
Molette failed to exhaust his administrative remedies because he did not file the
necessary charges with the EEOC. (Doc. 23, PageID.229-31). “It is settled law that in
order to obtain judicial consideration of a [Title VII] claim, a plaintiff must first file an
administrative charge with the EEOC within 180 days after the alleged unlawful
employment practice occurred.” Pijnenburg v. W. Georgia Health Sys., Inc., 255 F.3d
1304, 1305 (11th Cir. 2001). A plaintiff “can only file a charge to cover discrete acts that
occurred within the appropriate time period.” Nat'l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 114, (2002) (internal quotation marks omitted).
Here, Molette alleges in his First Amended Complaint that he filed a discrimination
charge with the Delaware Department of Labor in August of 2023. (Doc. 20, PageID.176).
Molette later states that the charge was filed “[o]n or around August 2023.” (Doc. 20,
PageID.182). Based on the timeline of events described in the First Amended Complaint,
the charge was made after Molette found out the white PLC technician, Bolen, was
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making a higher hourly rate than him and after Molette interviewed for the manager
position and the three white male employees discussed with Kipnis that Molette should
not get the promotion. Around that time, Molette also requested a pay increase evaluation
with Kipnis, said no one ever got back to him about that request, and then stated he
“notified HR that he would file a race discrimination complaint against AIT.” (Doc. 20,
PageID.173). Presumably, that is exactly what he did in filing the EEOC charge with the
Delaware Department of Labor around August 2023, which then lead to the issuance of
the Pennsylvania Right to Sue Letter on July 9, 2024. (Doc. 20-1, PageID.187).
Because Molette did not provide the relevant EEOC charge with his First Amended
Complaint, nor was it provided by AIT, the undersigned has had to piece together the
allegations regarding the EEOC charge and the right to sue letters to determine if Molette
has exhausted his administrative remedies. As noted above, Molette attached two right
to sue letters to his First Amended Complaint — the Alabama Right to Sue Letter issued
on April 29, 2024, and the Pennsylvania Right to Sue Letter issued on July 9, 2024. (Doc.
20-1, PageID.186-87). The Alabama Right to Sue Letter states the charge was dismissed
because the alleged discriminatory acts were outside the statute of limitations. (Doc. 20-
1, PageID.186). Accordingly, a valid Title VII claim can only be based on the alleged
discriminatory acts in the EEOC charge for which the Pennsylvania Right to Sue Letter
was issued, and the undersigned concludes that that charge is the one Molette says he
filed with the Delaware Department of Labor around August 2023. Based on the
statements in the First Amended Complaint, this charge was premised on AIT’s alleged
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discriminatory pay and failure to promote due to Molette’s race.4 Therefore, the
undersigned finds that Molette has exhausted his administrative remedies as to his Title
VII claims for discriminatory pay and failure to promote based on his race.
On the other hand, Molette did not allege in his First Amended Complaint any
retaliatory actions taken by AIT on or before August 2023, the date he says the EEOC
charge was filed. In fact, Molette alleges AIT’s retaliatory conduct was in response to his
filing a complaint with Airbus, which he said did not occur until around November 14,
2023. (Doc. 20, PageID.174). Therefore, it does not appear that a retaliation claim was
included in the EEOC charge filed with the Delaware Department of Labor. As a result,
Molette has not demonstrated that he exhausted his administrative remedies such that
he can pursue a Title VII claim for retaliation, and the undersigned recommends dismissal
of Count I’s Title VII retaliation claim.
Having found that Molette exhausted his administrative remedies for his Title VII
discriminatory pay and failure to promote claims, the Court will now consider whether
those claims were adequately stated in the First Amended Complaint. Under Title VII, it
4 The Proposed Complaint does include a Charge of Discrimination filed with the
Delaware Department of Labor with the claim number referenced in the Pennsylvania
Right to Sue Letter. (Doc. 38, PageID.279). The charge states that the “Charging Party
presented this discrimination complaint to the DDOL on September 22, 2023,” and the
alleged date discrimination took place is September 13, 2023. (Id.). AIT states in its Reply
that the charge was filed on September 22, 2023. (Doc. 35, PageID.258). Thus, it appears
both parties have seen or are in possession of the relevant EEOC charge and are aware
of its contents but have failed to provide a copy to the Court for purposes of the Motion to
Dismiss. The charge describes the adverse employment actions as failure to promote and
failure to provide equal wages due to race. (Doc. 38, PageID.279). While the undersigned
has not based his recommendation on the contents of this charge, which was only
provided with the Proposed Complaint and is not before the Court on the Motion to
Dismiss, the charge affirms the conclusions the undersigned has been able to draw from
the allegations and documents before the Court.
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is unlawful for an employer “to discharge any individual, or otherwise to discriminate
against any individual with respect to [her] compensation, terms, conditions, or privileges
of employment, because of such individual's race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of discrimination under Title
VII, “the plaintiff may demonstrate that: ‘(1) he is a member of a protected class; (2) he
was qualified for the position; (3) he suffered an adverse employment action; and (4) he
was replaced by a person outside his protected class or was treated less favorably than
a similarly-situated individual outside his protected class.’” Smith v. CH2M Hill, Inc., 521
F. App'x 773, 775 (11th Cir. 2013) (quoting Maynard v. Bd. of Regents, 342 F.3d 1281,
1289 (11th Cir.2003)). While Molette is not required to make out a prima facie case with
regard to each of his discrimination claims to survive a motion to dismiss, he is required
to plead facts sufficient to raise the inference that he was discriminated against. See
McCurdy v. State of Alabama Disability Determination Serv., No. 2:13CV934-MHT, 2015
WL 5737103, at *7 (M.D. Ala. Sept. 30, 2015).
In order to state a prima facie case for Title VII race-based pay discrimination,
Molette must show that he belongs to a racial minority and that the job he occupied was
similar to higher-paying jobs occupied by employees outside of his protected class.
Haley–Muhammad v. Colonial Management Group, LP, 2014 WL 4269133 (N.D. Ala.
Aug. 26, 2014) (citing Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1529
(11th Cir.1992)). AIT begins by asserting that Molette has not pled sufficient facts to
identify his alleged protected class. (Doc. 23, PageID.232). But Molette affirmatively
states that he is an “African American male” (Doc. 20, PageID.177), and it is clear he is
asserting claims based on race discrimination. Molette alleged that he was qualified for
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his job and Bolen was a white employee who held an equivalent position as a PLC
technician on a different shift and was being paid a higher hourly rate than Molette.5
Molette alleged he requested a pay evaluation once he discovered the discrepancy, and
no one at AIT responded to this request. He then informed AIT he was going to file a race
discrimination claim. Molette has alleged sufficient facts to state a claim for race-based
pay discrimination.
In order to make out a prima facie case for a Title VII failure to promote claim,
Molette must show that he was a member of a protected class, that he was qualified for
and applied for a promotion, that he was rejected despite his qualifications, and that other
equally or less qualified employees who were not members of the protected class were
promoted. Johnson v. Autozone, Inc., 768 F.Supp.2d 1124, 1144 (N.D. Ala. 2011) (citing
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004)). Molette alleged
that he applied and interviewed for the maintenance manager position in August 2023.
Molette said he was told by Kipnis that “he knows he has to be aware of what the face
looks like that represents the company.” (Doc. 20, PageID.173). Molette also stated that
the white first shift lead technician, Wayne Dunnam, who had previously complained
about Molette wearing his hair in braids, told Kipnis “I don’t care who you hire for the new
[manager] job as long as it is not Douglas [Molette].” (Doc. 20, PageID.173-74). Molette
stated that AIT then hired a white male, Bradley Drake, to the manager position, even
though Molette “had more education and experience than his Caucasian counterpart.”
5 AIT claims that the pay discrepancy is explained by the fact that Bolen was being paid
by the staffing agency HWX, but it is unclear whether HWX simply issued Bolen’s initial
paychecks when he was first hired but then was a direct employee of AIT at the time
Molette discovered the pay discrepancy.
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(Doc. 20, PageID.183). Molette has alleged sufficient facts to state a claim for race-based
failure to promote.
In conclusion, as to Count I, the undersigned recommends that AIT’s Motion to
Dismiss be GRANTED IN PART to dismiss Molette’s Title VII retaliation claim for failure
to exhaust his administrative remedies and DENIED IN PART to allow Molette to proceed
with Title VII claims for race-based pay discrimination and failure to promote.
b. Count II – § 1981 – Discrimination
Count II of the First Amended Complaint asserts claims under 42 U.S.C. § 1981
only for discrimination. (Doc 20, PageID.182-183). An EEOC charge is not a prerequisite
to filing a § 1981 lawsuit, so there is no exhaustion requirement as to Molette’s § 1981
claims. Further, a “claim for disparate treatment pursuant to Title VII and pursuant to §
1981 has the same legal elements.” Leige v. Capitol Chevrolet, Inc., 895 F.Supp. 289,
293 (M.D.Ala.1995) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989)).
The undersigned has already found Molette has alleged facts sufficient to support Title
VII claims for race-based pay discrimination and failure to promote. Consequently, he has
also sufficiently pled these claims under § 1981. The undersigned recommends AIT’s
Motion to Dismiss be DENIED as to Count II, allowing Molette to proceed with § 1981
claims for race-based pay discrimination and failure to promote.
IV. Conclusion
For the reasons discussed, it is recommended that Plaintiff’s Motion to Amend be
DENIED (Doc. 23) and Defendant’s Motion to Dismiss be GRANTED IN PART AND
DENIED IN PART (Doc. 38) as set forth above.
NOTICE OF RIGHT TO FILE OBJECTIONS
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A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything in it
must, within fourteen (14) days of the date of service of this document, file specific written
objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);
S.D. Ala. Gen. LR 72(c)(1) & (2). The parties should note that under Eleventh Circuit Rule
3-1, “[a] party failing to object to a magistrate judge’s findings or recommendations
contained in a report and recommendation in accordance with the provisions of 28 U.S.C.
§ 636(b)(1) waives the right to challenge on appeal the district court’s order based on
unobjected-to factual and legal conclusions if the party was informed of the time period
for objecting and the consequences on appeal for failing to object. In the absence of a
proper objection, however, the court may review on appeal for plain error if necessary in
the interests of justice.” 11th Cir. R. 3-1. To be specific, an objection must identify the
specific finding or recommendation to which objection is made, state the basis for the
objection, and specify the place in the Magistrate Judge’s report and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the Magistrate Judge is not specific.
DONE this the 6th day of August, 2025.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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