Baugh et al v. Austal USA, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PAUL DAVID BAUGH, JR., et al., 	*
*
Plaintiffs, 	*
*
vs. 	* CIVIL ACTION NO. 22-00329-KD-C
*
AUSTAL USA, LLC, 	*
*
Defendant. 	*
REPORT AND RECOMMENDATION
This action is before the Court on Defendant Austal USA, LLC’s motion to
dismiss Counts III through VI of Plaintiffs’ first amended complaint (Doc. 50). 	The
motion 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. GenLR
72(a)(2)(S). 	Upon 	consideration 	of 	all 	matters 	presented, 	the 	undersigned
recommends, for the reasons stated herein, that Defendant’s motion be GRANTED
in part and DENIED in part.
I. 	BACKGROUND
On July 14, 2022, Plaintiffs Paul David Baugh, Jr. (“Baugh”), David Dudley
(“Dudley”), Carl Skipper (“Skipper”), James Vela (“Vela”), and James Anthony Woods
(“Woods”) commenced this action by filing a two-count complaint against Defendant
Austal USA, LLC (“Austal”) in the Southern District of Mississippi. 	(Doc. 1).
Plaintiffs’ complaint asserted claims against Austal for “Religious Discrimination By
Defendant’s Failure to Provide Accommodations” in violation of Title VII of the Civil
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Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. (Count I), and “Negligence
and/or Gross Negligence” (Count II). 	(Id.). 	On August 22, 2022, this case was
transferred to the Southern District of Alabama. 	(Doc. 9). 	On September 6, 2022,
Austal filed an answer to Plaintiffs’ complaint. (Doc. 19).
On November 1, 2022, Plaintiffs filed a motion for leave to amend and a
proposed 	amended 	complaint 	seeking 	to 	add 	numerous 	claims 	and 	additional
defendants (Docs. 25, 25-1), which they later amended by filing an “alternative”
proposed first amended complaint. (Doc. 29-1). On April 10, 2023, the Court granted
Plaintiffs’ motion for leave to amend only to the extent it sought to add new Title VII
claims against Austal for disparate treatment religious discrimination, hostile work
environment, and harassment on religious grounds, and an invasion of privacy claim
under Alabama state law. (Doc. 48).
On April 24, 2023, Plaintiffs filed their operative first amended complaint,
which asserts six causes of action against Austal.1 	(Doc. 49). 	Notably, in the first
amended complaint, Plaintiffs bring the following claims against Austal under Title
VII:
Count I
Violation of Title VII . . .
Failure to Accommodate - Religious Discrimination . . .
. . . Plaintiffs hold sincere religious beliefs that preclude them from
receiving a COVID-19 vaccine.
1 	Although the invasion of privacy claim in Plaintiffs’ proposed first amended
complaint 	was 	directed 	against 	Austal, 	Austal’s 	parent 	company, 	and 	four
individuals, 	the 	operative 	first 	amended 	complaint 	names 	Austal 	as 	the 	sole
Defendant. (See Docs. 29-1, 49).
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In good faith, . . . Plaintiffs informed Austal USA of those beliefs and
requested 	religious 	exemptions 	and 	accommodations 	from 	Austal
Limited’s and Austal USA’s vaccine mandate. . . . Plaintiffs undertook
all requisite and applicable procedures to engage in the accommodation
process with Defendant.
Austal USA has failed to engage in the interactive process with . . .
Plaintiffs regarding their religious accommodation requests.
Irrespective of the interactive process, Austal USA failed to provide . . .
Plaintiffs with religious exemptions and reasonable accommodations,
thereby discriminating against . . . Plaintiffs because of their religious
beliefs.
Through Austal USA’s actions, policies, employment practices, and
conduct directed at Plaintiffs’ religious faith, in addition to failing to
engage in the interactive process or offer any accommodations, Austal
USA 	intentionally 	or 	recklessly 	deprived 	. 	. 	. 	Plaintiffs 	of 	their
constitutional rights to protection under law in violation of Title VII.
As a result of the actions of Austal USA, . . . Plaintiffs have been and
continue to be injured, suffering distress, humiliation, loss of prestige,
mental anguish, emotional pain and suffering, and monetary and
economic losses.
***
Count III
Violation of Title VII . . .
Disparate Treatment - Religious Discrimination . . .
. . . Plaintiffs have been discriminated against by Austal USA because
of 	their 	religious 	beliefs 	in 	the 	terms 	of 	wages/compensation,
promotions, 	job 	assignments, 	discipline, 	discharge 	(inactive 	status
and/or termination), and other terms, conditions, and privileges of their
employment.
Austal USA has engaged in and continues to engage in a pattern and
practice of discriminating against its employees on the basis of religion,
with 	respect 	to 	wages/compensation, 	promotions, 	job 	assignments,
discipline, discharge (inactive status and/or termination), and other
terms, conditions, and privileges of their employment. This pattern and
practice are uniformly implemented among Austal Limited and Austal
USA facilities across the U.S. and globe.
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The selection procedures of Austal USA have and continue to have a
disparate impact on employees who possess sincerely held religious
beliefs, including . . . Plaintiffs.
Jobs which could potentially result in promotions for . . . Plaintiffs are
not posted and instead given to individuals who do not express their
sincerely held religious beliefs against the vaccine mandate.
Employees who express their religious beliefs were denied positions,
stripped of responsibilities, and were subject to disciplinary actions at
disproportionate 	rates 	than 	individuals 	who 	did 	not 	express 	such
religious beliefs. Austal USA’s policies are only targeted at . . . Plaintiffs
and like-situated persons of religious beliefs.
Austal 	USA’s 	hiring 	practices 	and 	promotion 	process 	delineate 	a
preference to only hire individuals that do not express such religious
beliefs.
In the absence of such religious discrimination, . . . Plaintiffs would have
a greater opportunity of both supervising and being supervised by
persons of their same religious beliefs, having persons of their same
religious beliefs integrated into the decision-making process as it related
to 	wages/compensation, 	promotions, 	job 	assignments, 	discipline,
discharge, and other terms, condition, and privileges of employment. By
having members of their own religious beliefs, Plaintiffs and similarly
situated employees’ conditions in all of the foregoing respects would
have been significantly improved and they would have been less likely
to have been subjected to religious bias in such decisions to the same
degree that they have been.
But-for . . . Plaintiffs’ religious beliefs, Austal USA would not have
engaged in such conduct that had a disparaging effect upon . . . Plaintiffs
and only individuals similarly situated to . . . Plaintiffs.
Austal USA failed to take any prompt and effective action reasonably
calculated to result in the prevention of and/or remedy of the religious
discrimination of . . . Plaintiffs.
Through 	Austal 	USA 	actions, 	policies, 	employment 	practices, 	and
conduct directed at Plaintiffs’ religious faith, in addition to failing to
engage in the interactive process or offer any accommodations, Austal
USA 	intentionally 	or 	recklessly 	deprived 	. 	. 	. 	Plaintiffs 	of 	their
constitutional rights to protection under law in violation of Title VII.
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As a result of the actions of Austal USA, . . . Plaintiffs have been and
continue to be injured, suffering distress, humiliation, loss of prestige,
mental anguish, emotional pain and suffering, and monetary and
economic losses.
Count IV
Violation of Title VII . . .
Creation of a Hostile Work Environment . . .
. 	. 	. 	Plaintiffs 	suffered 	mistreatment 	based 	on 	their 	protected
characteristic as Christians. Defendant’s conduct was so severe or
pervasive 	that 	it 	altered 	the 	terms, 	conditions, 	or 	privileges 	of
employment, which subsequently created a work environment riddled
with abuse.
In good faith, . . . Plaintiffs undertook all requisite and applicable
procedures to inform Austal USA of the harassment and toxicity that
was pervasive around the workplace.
. . . Plaintiffs’ subjugation to such conduct that was motivated on
religious 	grounds 	has 	been 	authorized, 	ratified, 	encouraged, 	and
condoned by Austal USA.
Austal USA is responsible for the creation of a hostile work environment
under a theory of vicarious liability or direct liability. Austal USA
directly engaged in the consistent harassment and directly contributed
to the creation of a hostile work environment.
Austal 	USA, 	its 	supervisors, 	managers, 	and/or 	human 	resources
department did not take any steps to assist in the alleviation of this
harassing behavior and were in fact one of the primary sources of the
harassing behavior.
Austal USA failed to take any prompt and effective action reasonably
calculated to result in the prevention and remedy of the religious
harassment, religious discrimination, and/or creation of a hostile work
environment of . . . Plaintiffs.
Through Austal USA’s actions, policies, employment practices, and
conduct directed at Plaintiffs’ religious faith, in addition to failing to
engage in the interactive process or offer any accommodations, Austal
USA 	intentionally 	or 	recklessly 	deprived 	. 	. 	. 	Plaintiffs 	of 	their
constitutional rights to protection under law in violation of Title VII.
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The actions of Austal USA, as set out herein, violate Title VII.
As a result of the actions of Austal USA, . . . Plaintiffs have been and
continue to be injured, suffering distress, humiliation, loss of prestige,
mental anguish, emotional pain and suffering, and monetary and
economic losses.
Count V
Violation of Title VII . . .
Harassment on Religious Grounds . . .
Austal USA’s conduct was so severe or pervasive that it altered the
terms, conditions, or privileges of employment.
In good faith, . . . Plaintiffs undertook a myriad of requisite and
applicable procedures to inform Austal USA of the harassment and the
culture of toxicity pertaining to religion.
Austal USA is responsible for such harassment under a theory of
vicarious liability or direct liability.
Accordingly, Austal USA had actual knowledge of the actions of its
managers and supervisors based on its involvement or conversely had
constructive 	knowledge 	of 	such 	conduct 	based 	on 	the 	internal
organizational policies advanced by Austal USA.
Austal USA failed to take any prompt and effective action reasonably
calculated to result in the prevention of and/or remedy of the religious
harassment and discrimination of . . . Plaintiffs and were in fact one of
the primary sources of the harassing conduct.
Through Austal USA’s actions, policies, employment practices, and
conduct directed at . . . Plaintiffs’ religious faith, in addition to failing to
engage in the interactive process or offer any accommodations, Austal
USA 	intentionally 	or 	recklessly 	deprived 	. 	. 	. 	Plaintiffs 	of 	their
constitutional rights to protection under law in violation of Title VII.
The actions of Austal USA, as set out herein, violate Title VII.
As a result of the actions of the Austal USA, . . . Plaintiffs have been and
continue to be injured, suffering distress, humiliation, loss of prestige,
mental anguish, emotional pain and suffering, and monetary and
economic losses.
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(Id. at 34-41).
On April 28, 2023, Austal filed the instant motion to dismiss Plaintiffs’ Title
VII claims for disparate treatment religious discrimination (Count III), hostile work
environment (Count IV), and harassment on religious grounds (Count V), and
Plaintiffs’ invasion of privacy claim under Alabama state law (Count VI). (Doc. 50).
Plaintiffs timely filed a response in opposition to the motion to dismiss (Doc. 53), and
Austal filed a timely reply. (Doc. 56). Thus, Austal’s motion is ripe for resolution.
II. 	STANDARDS OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.
R. Civ. P. 12(b)(6). 	“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)). 	“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.” Id. This necessarily requires
that a plaintiff include factual allegations for each essential element of her claim.
Randall v. Scott, 610 F.3d 701, 708 n.2 (11th Cir. 2010). When evaluating a motion
to dismiss under Rule 12(b)(6), a court “must accept the factual allegations in the
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). 	That said,
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“[l]egal conclusions without adequate factual support are entitled to no assumption
of truth.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011).
A court reviewing a motion to dismiss must typically limit its consideration to
the complaint and exhibits attached thereto. 	Grossman v. Nationsbank, N.A., 225
F.3d 1228, 1231 (11th Cir. 2000) (per curiam). “If the complaint contains a claim that
is facially subject to an affirmative defense, that claim may be dismissed under Rule
12(b)(6).” LeFrere v. Quezada, 582 F.3d 1260, 1263 (11th Cir. 2009).
III. 	DISCUSSION
Austal contends that Plaintiffs’ recently added Title VII claims for disparate
treatment religious discrimination (Count III), hostile work environment (Count IV),
and 	harassment 	on 	religious 	grounds 	(Count 	V) 	should 	be 	dismissed 	because
Plaintiffs failed to exhaust their administrative remedies with respect to those
claims. (Doc. 50 at 7). Specifically, Austal asserts that Plaintiffs did not timely file
charges of discrimination with the U.S. Equal Employment Opportunity Commission
(“EEOC”) regarding the Title VII claims added in their first amended complaint, and
that these claims could not reasonably have been expected to grow out of the EEOC
charges that Plaintiffs filed. (Id. at 8-13). Austal further argues that Plaintiffs’ Title
VII claims in Counts III through V are time-barred because Plaintiffs did not raise
them within ninety days of receiving their right-to-sue notices from the EEOC. (Id.
at 13-14). Austal also contends that Plaintiffs’ Alabama state law invasion of privacy
claim should be dismissed because the first amended complaint fails to allege
sufficient facts to state a plausible claim for relief. (Id. at 14-17).
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Plaintiffs counter that their Title VII claims for disparate treatment religious
discrimination, hostile work environment, and religious harassment should not be
dismissed because they reasonably grow out of their charges of discrimination, which
allowed the EEOC a reasonable opportunity to fully investigate all of Plaintiffs’
claims of discrimination. (Doc. 53 at 5-18). Plaintiffs argue that their Title VII claims
are not time-barred because they satisfied their obligation to file suit within ninety
days of receipt of their right-to-sue notices. (Id. at 18-20). Plaintiffs further contend
that their state law invasion of privacy claim should not be dismissed because they
alleged sufficient facts to state a plausible claim for relief. (Id. at 21-30).
A. 	Plaintiffs’ Title VII Claims In Counts III Through V Of The First
Amended Complaint Should Be Dismissed Because Plaintiffs
Did Not Exhaust Their Administrative Remedies As To Those
Claims.
As noted supra, Austal asserts that Plaintiffs’ Title VII claims for disparate
treatment religious discrimination (Count III), hostile work environment (Count IV)
and harassment on religious grounds (Count V) could not reasonably have been
expected to grow out of Plaintiffs’ EEOC charges and are therefore beyond the
allowable scope of Plaintiffs’ judicial complaint. 	(Doc. 50 at 11-13). 	Thus, Austal
contends that these claims are due to be dismissed because Plaintiffs failed to exhaust
their administrative remedies as to these claims. (Id. at 13). According to Austal:
Plaintiffs have not administratively exhausted any claim other than
their respective claims for Title VII religious failure to accommodate. . .
. Plaintiffs failed to raise any allegations whatsoever of either disparate
treatment religious discrimination or of a religiously hostile work
environment within their respective EEOC Charges. They did not
include any hint, mention, or suggestion at all of any concern, issue, or
complaint 	they 	had 	about 	religious-based 	discrimination 	as 	to
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“wages/compensation, 	promotions, 	job 	assignments, 	discipline,
discharge 	(inactive 	status 	and/or 	termination), 	and 	other 	terms,
conditions, and privileges of their employment,” . . . or that they worked
in a religiously hostile workplace “riddled with abuse” and wherein
“harassment and toxicity that was pervasive around the workplace.” . .
. Indeed, the only actions by Austal constituting alleged discrimination
identified in Plaintiffs’ Charges were the alleged failure to accommodate
and Plaintiffs’ terminations. . . .
To the contrary, the Plaintiffs’ Charges read solely and explicitly in
relation to each’s respective allegation that he had been denied a
religious accommodation/exemption in violation of Title VII and were
subsequently terminated as a result thereof. . . . There is no statement
or 	implication 	within 	the 	Charge 	even 	remotely 	suggesting 	that
Plaintiffs were in any way complaining of any type of religious-based
disparate treatment (i.e., that, as Christians, they were being treated
differently from non-Christians with respect to the terms and conditions
of their employment) or of any type of religious-based harassment. . . .
Moreover, the Title VII claims at issue here could not reasonably be
expected to “grow out of” the scope of the EEOC’s investigation of
Plaintiffs’ respective Charges which were based strictly on Austal’s
alleged 	Title 	VII 	failure 	to 	accommodate 	their 	religious
accommodation/exemption requests. . . . Indeed, “the scope of the EEOC
investigation that can reasonably be expected to grow out of the facts
contained in the [P]laintiffs’ [respective] [C]harges is confined to one
type of discrimination: [failure to accommodate] (“the how”) on the
basis of [religion] (“the why.”) . . . . “Because the [P]laintiffs’ EEOC
[C]harges presented such a narrow issue, they have not exhausted Title
VII claims alleging a broader pattern of workplace discrimination - by
[Austal] on the basis of [religion] - and thus, they cannot now expand”
the 	theory 	of 	“the 	how” 	to 	include 	allegations 	of 	disparate 	pay
discrimination as to wages/compensation, promotions, job assignments,
discipline, 	discharge, 	or 	any 	other 	terms 	and 	conditions 	of 	their
employment), or of harassment. . . .
The Title VII religious disparate treatment and harassment claims that
Plaintiffs now include in their First Amended Complaint do not, in any
way, “grow out of” the Title VII religious failure to accommodate claim
in their respective Charges. . . . Instead, they have simply raised new
and novel theories of discrimination for the first time in the First
Amended 	Complaint, 	which 	is 	prohibited 	by 	Title 	VII 	and 	its
jurisprudence.
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(Id. at 9-12 (emphasis in original)).
In response, Plaintiffs argue that each of their Title VII claims “substantially
relate to one another and ‘grow out’ of” their charges of discrimination, and that their
new Title VII claims “are ‘virtually indistinguishable’ with Plaintiffs’ existing claims
for Failure to Accommodate (Count I) due to their relatedness of the kind of
discrimination alleged, and are expressly derived from Plaintiffs’ descriptions within
their Charges of Discrimination.” (Doc. 53 at 7). Plaintiffs posit that the “underlying
predicate actions all occurred under the ‘umbrella’ of Austal USA’s COVID-19
Vaccination Mandate[,]” and that their “recently included claims for relief under Title
VII are expressly derived from Defendant’s conduct to create, implement, enact,
administer, and enforce” the mandate, which was “depicted within each Plaintiffs’
Charges of Discrimination.” (Id. at 8 (emphasis in original)). Per Plaintiffs:
. . . Defendant’s COVID-19 Vaccination Mandate . . . was the principal
subject of discrimination identified by Plaintiffs in their Charges of
Discrimination, and served as the primary basis for discrimination as
alleged by Plaintiffs existing Failure to Accommodate (Count I) claims
within their Original and First Amended Complaint. . . . Defendant
“having failed to accommodate their religious exemption request” is but
one 	(1) 	predicate 	discriminatory 	allegation 	that 	was 	indicated 	in
Plaintiffs’ Charges of Discrimination and such inherent action resides
within 	the 	larger 	dispositive 	policy 	that 	necessitated 	exemption
requests and accommodation determinations – Austal USA’s COVID-19
Vaccination Policy, which supports Plaintiffs’ . . . contentions . . .
concerning 	the 	“natural 	considerations” 	of 	facts 	that 	would 	have
logically been ascertained through the EEOC’s investigation.
. . . Plaintiffs contend that because the Court and Defendant had
previously recognized the validity of Plaintiffs’ Failure to Accommodate
(Count I) claims that were expressly derived from this exact conduct
referenced by Plaintiffs in their Charges of Discrimination, then it is
logical to determine Plaintiffs’ additional Title VII claims for religious
discrimination “grow out” of Plaintiffs’ Charges of Discrimination and/or
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are virtually indistinguishable. This is because Plaintiffs’ additional
Title VII claims all directly stem from Defendant’s creation of its
COVID-19 Vaccination Mandate and the underlying predicate actions
taken by Defendant to implement, administer, and enforce the policy are
the predicate of the same transactions, occurrences, and conduct, which
has served as the basis for Plaintiffs Failure to Accommodate (Count I)
claims.
. . . Plaintiffs’ additional Title VII claims “reasonably grow” from their
Charges 	of 	Discrimination 	because 	Plaintiffs’ 	identification 	and
description 	of 	Austal 	USA’s 	discriminatory 	COVID-19 	Vaccination
Mandate and conduct taken by Austal USA in furtherance of the
mandate was sufficient to establish Plaintiffs’ claims for religious
discrimination due to the natural considerations involved in the EEOC
administrative 	investigatory 	process. 	Each 	description 	of 	alleged
discrimination identified the principal vehicle of discrimination, the
COVID-19 	Vaccination 	Mandate, 	and 	its 	predicate 	actions 	in
furtherance of the mandate, such as the administration of the mandate
through evaluation of Plaintiffs’ religious exemptions and feasibility of
accommodation, 	conduct 	undertaken 	to 	enforce 	compliance 	of 	the
mandate, and the consequences of non-compliance (i.e., an employee’s
termination). Within each of these larger aspects of policies, procedures,
and tangible employment actions by Austal USA, contained uniquely
discrete factual circumstances of discrimination, which occurred on a
microcosmic 	scale 	to 	each 	Plaintiff. 	These 	actuals 	were 	done 	in
conjunction with the widely encompassing policies, procedures, and
tangible employment actions by Austal USA all of the employees of the
company 	as 	a 	whole. 	These 	microcosmic 	discrete 	instances 	of
discrimination would naturally become apparent to the EEOC through
its investigation of the primary mechanisms of discrimination that were
referenced in each Plaintiffs’ Charges of Discrimination. . . . As a result
of 	Plaintiffs’ 	sufficient 	depiction 	of 	such 	primary 	mechanisms 	of
discrimination, the EEOC was able to conduct an appropriate, timely,
wholistic, and reasonable assessment of the factual circumstances that
would 	surface 	to 	the 	forefront 	of 	the 	EEOC’s 	administrative
investigation and serve as the basis for their determination. Therefore,
Plaintiffs’ additional claims of religious discrimination “reasonably grow
out of” Plaintiffs’ Charges of Discrimination due to the sufficiency of
their descriptions of the major mechanisms of discrimination, which
allowed the EEOC to “have the first opportunity to investigate the
alleged discriminatory practices.” . . . Plaintiffs’ Charges sufficiently
provided 	allegations 	of 	discrimination 	that 	allowed 	the 	EEOC 	to
successfully investigate the factual circumstances led to Austal USA’s
decision to create, implement, administer, and enforce its COVID-19
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Vaccination Mandate, which included Austal USA’s decisions to enforce
compliance, reject exemption requests, refuse accommodation requests,
and terminate employees on the basis of the mandate. . . .
***
Plaintiffs did not specifically articulate each discrete act of alleged
discrimination 	against 	them 	in 	their 	respective 	Charges 	of
Discrimination, nor were they required to do so, since an employee
asserting discrimination in an EEOC charge of discrimination does not
need to specific list each and every discrete act complained of. Instead,
Plaintiffs “may include in [their] lawsuit a claim for injury resulting
from 	any 	practice 	which 	was 	or 	should 	have 	been 	included 	in 	a
reasonable investigation of the administrative complaint.” . . . As such,
even 	though 	Plaintiffs 	did 	not 	dictate 	each 	and 	every 	alleged
discriminatory act within a small, afforded text box within their Charge
of 	Discrimination, 	Plaintiffs’ 	felt 	the 	delineation 	of 	the 	primary
mechanisms of alleged religious discrimination was sufficient for the
EEOC to develop a full, fair, and reasonable opportunity to develop a
factual record through reasonable investigation into the COVID-19
Vaccination 	Mandate. 	Additionally, 	Plaintiffs 	felt 	the 	present
description of discrimination within their Charges of Discrimination
allowed 	the 	EEOC 	to 	investigate 	the 	allegations 	concerning 	the
circumstances surrounding the policy itself, Austal USA’s procedures
regarding the policy, and the accompanying conduct taken
against Plaintiffs such as, denial of their religious exemption requests,
denial of accommodations, and termination. . . .
. . . Plaintiffs’ religious discrimination claims under Title VII, which are
virtually indistinguishable and/or included within Plaintiffs’ existing
claim of Failure to Accommodate (Count I), were timely provided to the
EEOC, are not “new claims”, are implicit and explicit within their
Charges of Discrimination, and allowed the EEOC a full, fair, and
reasonable opportunity to investigate Plaintiffs’ claims. Therefore, these
claims should not be dismissed.
(Id. at 9-12, 17-18).
“Title VII prohibits employers from discriminating against their employees on
the basis of religion.” 	Bailey v. Metro Ambulance Servs., Inc., 992 F.3d 1265, 1272
(11th Cir. 2021) (per curiam) (citing 42 U.S.C. § 2000e-2(a)(1)). 	“The term ‘religion’
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in Title VII’s prohibition against religious discrimination ‘includes all aspects of
religious observance and practice, as well as belief, unless an employer demonstrates
that he is unable to reasonably accommodate to an employee’s . . . religious
observa[nce] or practice without undue hardship on the conduct of the employer’s
business.’” 	Id. at 1275 (quoting 42 U.S.C. § 2000e(j)). 	Thus, Title VII “requires
employers to accommodate the religious practice of their employees unless doing so
would impose an ‘undue hardship on the conduct of the employer’s business.’” Groff
v. DeJoy, 143 S. Ct. 2279, 2286 (2023) (quoting 42 U.S.C. § 2000e(j)).
“A plaintiff can bring a Title VII religious discrimination claim based on
disparate treatment and/or a failure to accommodate [his] religious beliefs.” Lindsey
v. Bridge Rehab, Inc., 369 F. Supp. 3d 1204, 1210 (N.D. Ala. 2019). “A plaintiff may
also bring a Title VII religious discrimination claim based on a discriminatorily
hostile work environment.” Harris v. Acosta, 2018 U.S. Dist. LEXIS 237415, at *14-
15, 2018 WL 7080617, at *5 (N.D. Ga. Jan. 9, 2018), report and recommendation
adopted, 2018 U.S. Dist. LEXIS 238876, 2018 WL 7082541 (N.D. Ga. Feb. 5, 2018);
see, e.g., Jones v. United Space All., L.L.C., 170 F. App’x 52, 55 (11th Cir. 2006) (per
curiam). 	To establish a claim of a hostile work environment based on religious
harassment, 	an 	employee 	must 	prove 	“that 	the 	workplace 	is 	permeated 	with
discriminatory 	intimidation, 	ridicule, 	and 	insult, 	that 	is 	sufficiently 	severe 	or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” 	Alhallaq v. Radha Soami Trading, LLC, 484 F. App’x 293,
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295 (11th Cir. 2012) (per curiam) (quoting Miller v. Kenworth of Dothan, Inc., 277
F.3d 1269, 1275 (11th Cir. 2002)).
Before filing suit under Title VII, a plaintiff must exhaust his administrative
remedies by filing a charge of discrimination with the EEOC “within” 180 days “after
the alleged unlawful employment practice occurred[,]” and by filing a civil action
within ninety days after receipt of a right-to-sue notice from the EEOC. 	Abbott v.
Austal USA, LLC, 2023 U.S. Dist. LEXIS 99009, at *37, 2023 WL 3868571, at *13
(S.D. Ala. June 7, 2023) (DuBose, J.) (citing 42 U.S.C. §§ 2000e-5(e)(1), 2000e-5(f)(1)).
The purpose of this exhaustion requirement is to afford 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.” Evans
v. U.S. Pipe & Foundry Co., 696 F.2d 925, 929 (11th Cir. 1983).
“In light of the purpose of the EEOC exhaustion requirement, . . . a ‘plaintiff’s
judicial complaint is limited by the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of discrimination.’” Gregory v. Ga.
Dep’t of Hum. Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (per curiam) (citations
omitted). Thus, in determining whether a plaintiff has exhausted his administrative
remedies, “the ‘proper inquiry’ is whether the ‘plaintiff’s complaint is like or related
to, or grew out of, the allegations contained in the EEOC charge.’” Batson v. Salvation
Army, 897 F.3d 1320, 1328 (11th Cir. 2018) (citation and alterations omitted). “While
a plaintiff is not permitted to allege new acts of discrimination in a complaint that
were not raised in his EEOC Charge, the scope of an EEOC Charge ‘should not be
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strictly interpreted’ and any claim that ‘can reasonably be expected to grow out of the
charge of discrimination’ is allowed, including claims that ‘amplify, clarify, or more
clearly focus the allegations in the EEOC charge.’” 	Abbott, 2023 U.S. Dist. LEXIS
99009, at *37, 2023 WL 3868571, at *13 (quoting Gregory, 355 F.3d at 1280).
“Generally, a Title VII failure to accommodate claim is distinct from other
types of Title VII discrimination[.]” 	Id., 2023 U.S. Dist. LEXIS 99009, at *38, 2023
WL 3868571, at *14; see, e.g., Tillery v. ATSI, Inc., 2003 U.S. Dist. LEXIS 7119, at
*20, 2003 WL 25699080, at *6 (N.D. Ala. Apr. 14, 2003) (“An employer may
discriminate on the basis of religion in at least three ways: by subjecting an employee
who practices the doctrines of an unfavored religious faith to disparate treatment; by
failing 	to 	accommodate 	particular 	religious 	practices 	or 	requirements; 	or 	by
harassing the employee.”), aff’d, 97 F. App’x 906 (11th Cir. 2004) (per curiam); Bailey,
992 F.3d at 1272-77 (separately addressing claims of disparate treatment based on
religion under two distinct theories: “a traditional disparate-treatment claim” based
on plaintiff’s assertions that he was treated “worse than non-Rastafarians because he
was a Rastafarian[,]” and “a failure-to-reasonably-accommodate disparate-treatment
claim” based on employer’s “alleged failure to provide [plaintiff] with a reasonable
accommodation of his religious practice of wearing a beard”); Jean-Pierre v. Naples
Cmty. Hosp., Inc., 817 F. App’x 822, 828 (11th Cir. 2020) (per curiam) (acknowledging
that an employee asserting a claim relating to religious beliefs or practices “may plead
two separate claims for discrimination—one based on his employer’s failure to
accommodate and another based on other grounds,” but to do so successfully, the
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employee must allege a distinct factual basis for each claim); Jean Pierre v. Park
Hotels & Resort, Inc., 2017 U.S. Dist. LEXIS 164515, at *6, 2017 WL 4408972, at *2
(S.D. Fla. Oct. 4, 2017) (dismissing plaintiff’s hostile work environment claim for
failure to exhaust administrative remedies because “her charge of discrimination
[was] wholly silent as to any alleged harassment based on her religion”); cf. Ball v.
Target Corp., 2019 U.S. Dist. LEXIS 249761, at *19, 2019 WL 13273217, at *7 (N.D.
Ga. Mar. 4, 2019) (“A specific claim of discrimination, such as, racially discriminatory
disparate treatment or retaliatory disparate treatment, presents a separate and
distinct theory of recovery from other alleged acts of racial discrimination or
retaliation, such as, a claim of racially hostile work environment or harassment.
Each allegation of a type of discriminatory act raises a new theory of liability which
requires administrative exhaustion.”), report and recommendation adopted, 2019
U.S. Dist. LEXIS 249765, 2019 WL 13273186 (N.D. Ga. Mar. 29, 2019); Howard v.
City of Robertsdale, 2004 U.S. Dist. LEXIS 31209, at *20, 2004 WL 5551812, at *7
(S.D. Ala. Dec. 9, 2004) (“The law clearly makes a distinction between hostile work
environment claims and claims of adverse employment action as separate types of
discrimination under Title VII[.]”), aff’d, 168 F. App’x 883 (11th Cir. 2006) (per
curiam); Blalock v. Dale Cty. Bd. of Educ., 84 F. Supp. 2d 1291, 1302 (M.D. Ala. 1999)
(finding that claims of disparate pay and disparate treatment in EEOC charge did
not satisfy exhaustion requirement for hostile work environment claim, because the
latter “is a separate and distinct theory of liability with different elements of proof,”
and plaintiff’s EEOC charge did “not allude to or even generally reference a hostile
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work environment theory”); Smith v. Panera Bread, 2009 U.S. Dist. LEXIS 135970,
at 	*9-10, 	2009 	WL 	10667191, 	at 	*4 	(S.D. 	Fla. 	Aug. 	11, 	2009) 	(holding 	that
harassment/hostile 	work 	environment 	claims 	could 	not 	have 	reasonably 	been
expected to grow out of plaintiff’s EEOC charge, which “only alleged a discharge based
on race, indicated that no reasons were given for the discharge, and stated that the
discrimination began and ended on the same day” plaintiff was discharged); Baker v.
Hafez Corp., 2014 WL 1760976, at *6 (S.D. Ala. May 2, 2014) (DuBose, J.) (finding
that judicial claims “alleging a broader pattern of workplace discrimination . . . to
include such means as recruiting, hiring, training, job assignments, leave, and
benefits” could not reasonably have been expected to grow out of EEOC charges that
alleged only disparate pay on the basis of national origin).
As detailed above, Austal argues that Plaintiffs’ claims of disparate treatment
religious discrimination, religiously hostile work environment, and harassment on
religious grounds in Counts III through V could not reasonably have been expected
to grow out of the allegations in Plaintiffs’ EEOC charges, and that Plaintiffs have
therefore failed to exhaust their administrative remedies as to those claims. Having
reviewed Plaintiffs’ EEOC charges and first amended complaint at length, the Court
agrees.
Plaintiffs Baugh, Dudley, Skipper, Vela, and Woods filed nearly identical
charges of discrimination between November 18, 2021 and April 22, 2022. (See Doc.
49-3). 	In the “discrimination based on” section of their EEOC charges, Plaintiffs
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either wrote “religion” or checked the “religion” box. 	(Id. at 1, 4, 7, 9, 11). 	In the
“particulars” section of their EEOC charges, Plaintiffs stated as follows:
Plaintiff Baugh:
I was notified by my employer that it would be requiring all employees
to be fully vaccinated. I sincerely hold a religious belief that conflicts
with my employers vaccination requirement. During my employment, I
notified my employer of my religious belief and requested a religious
accommodation to Respondents Covid-19 vaccination mandate, which
was 	denied. 	On 	or 	about 	October 	28, 	2021, 	my 	employment 	was
terminated.
I believe I have been discriminated against because of my religion,
Christianity, in violation of Title VII of the Civil Rights Act of 1964, as
amended.2
Plaintiff Dudley:
I was notified by my employer that it would be requiring all employees
to be fully vaccinated by December 8, 2021. I sincerely hold a religious
belief that conflicts with my employer’s vaccination requirement. On or
about October 22, 2021, my request for a religious accommodation was
denied. My employment was terminated on October 27, 2021.
My religion is CHRISTIAN.
I believe my employer failed to accommodate me because of my religion
in violation of Title VII of the Civil Rights Act of 1964, as amended.3
Plaintiff Skipper:
I was notified by my employer that it would be requiring all employees
to be fully vaccinated. I sincerely hold a religious belief that conflicts
2 	Plaintiff Baugh listed October 26, 2021 as the earliest date discrimination took
place and October 28, 2021 (the date his employment was allegedly terminated) as
the latest date discrimination took place. (Doc. 49-3 at 1).
3 	Plaintiff Dudley listed October 22, 2021 (the date his religious accommodation
request was allegedly denied) as the earliest date discrimination took place and
October 27, 2021 (the date his employment was allegedly terminated) as the latest
date discrimination took place. (Doc. 49-3 at 4).
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with my employers vaccination requirement. During my employment, I
notified 	my 	employer 	of 	my 	religious 	belief 	and 	my 	need 	for 	an
accommodation 	from 	the 	vaccination 	requirement. 	I 	requested 	a
religious exemption to Respondents Covid-19 vaccination mandate,
which was denied. My employment was terminated on or about October
27, 	2021. 	I 	believe 	my 	employer 	failed 	to 	accommodate 	me 	and
discriminated 	against 	me 	because 	of 	my 	religion, 	Christianity, 	in
violation of Title VII of the Civil Rights Act of 1964, as amended.4
Plaintiff Vela:
I was notified by my employer that it would be requiring all employees
to be fully vaccinated. I sincerely hold a religious belief that conflicts
with my employers vaccination requirement. During my employment, I
notified my employer of my religious belief and requested a religious
accommodation to Respondents Covid-19 vaccination mandate, which
was 	denied. 	On 	or 	about 	October 	27, 	2021, 	my 	employment 	was
terminated. I believe I have been discriminated against because of my
religion, Christianity, in violation of Title VII of the Civil Rights Act of
1964, as amended.5
Plaintiff Woods:
I was notified by my employer that it would be requiring all employees
to be fully vaccinated. I sincerely hold a religious belief that conflicts
with my employers vaccination requirement. During my employment, I
notified my employer of my religious belief and requested a religious
accommodation to Respondents Covid-19 vaccination mandate, which
was denied. On or about November 16, 2021, my employment was
terminated. I am Baptist. I believe I have been discriminated against
because of my religion in violation of Title VII of the Civil Rights Act of
1964, as amended.6
4 	Plaintiff Skipper listed October 27, 2021 (the date his employment was allegedly
terminated) as both the earliest and the latest date discrimination took place. (Doc.
49-3 at 7).
5 Plaintiff Vela listed October 23, 2021 as the earliest date discrimination took place
and October 27, 2021 (the date his employment was allegedly terminated) as the
latest date discrimination took place. (Doc. 49-3 at 9).
6 Plaintiff Woods listed November 16, 2021 (the date his employment was allegedly
terminated) as both the earliest and the latest date discrimination took place. (Doc.
49-3 at 11).
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(Id.). Thus, with slight variations, Plaintiffs’ EEOC charges reported that they were
notified by Austal that all employees would be required to be fully vaccinated in
compliance with the company’s Covid-19 vaccination mandate, they sincerely hold
religious beliefs that conflict with this vaccination requirement, they notified Austal
of their religious beliefs and requested religious accommodations or exemptions to
the 	vaccination 	requirement, 	their 	requests 	for 	religious 	accommodations 	or
exemptions were denied, their employment was terminated, and Austal failed to
accommodate them and terminated their employment because of their religion in
violation of Title VII. 	(See id.). 	The EEOC issued right-to-sue notices to Plaintiffs
between April 18, 2022 and June 16, 2022. (Doc. 49-2).
Based on the foregoing, it is clear that the scope of Plaintiffs’ EEOC charges is
“limited to Title VII allegations for failure to accommodate (religion).” Abbott, 2023
U.S. Dist. LEXIS 99009, at *46, 2023 WL 3868571, at *15. 	Like the substantially
similar and/or nearly identical EEOC charges filed by the plaintiffs in Abbott, the
EEOC charges filed by the Plaintiffs in this case make no implicit or explicit reference
to “Title VII . . . hostile work environment, harassment, or disparate treatment based
on their religious beliefs . . . .” 	Id., 2023 U.S. Dist. LEXIS 99009, at *46, 2023 WL
3868571, at *16. 	Indeed, Plaintiffs’ EEOC charges neither allege nor suggest
religious-based discrimination under any theory separate and apart from their claim
that Austal failed to reasonably accommodate their religious beliefs that conflicted
with Austal’s requirement that all employees be vaccinated against Covid-19 and
terminated their employment as a result. Plaintiffs’ EEOC charges in no way suggest
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a broader pattern of religious-based disparate treatment (as alleged in Count III),7
nor do they in any way allude to the existence of a hostile work environment or
religious-based harassment by anyone at Austal (as alleged in Counts IV and V).
Instead, Plaintiffs’ EEOC charges mention only Austal’s failure to accommodate their
religious accommodation/exemption requests with respect to the company’s COVID-
19 	vaccination 	mandate 	and 	the 	resulting 	termination 	of 	their 	employment.
Moreover, while the factual allegations relevant to Counts III through V of the first
amended complaint encompass a significantly broader timeframe, Plaintiffs’ EEOC
charges indicate that the discrimination complained of therein began and ended
within a very short period of time on or near the date each Plaintiff’s employment
was terminated.
Thus, Plaintiffs’ arguments that each of their Title VII claims are sufficiently
intertwined so as to fall within the allowable judicial scope of the complaint are
unconvincing. As summarized by the Court in Abbott, “Plaintiffs’ characterization of
Austal’s Covid-19 vaccination mandate -- once identified in EEOC Charges -- as being
the 	catchall 	‘umbrella’ 	sheltering 	(and 	including) 	all 	types 	of 	discrimination
(unidentified, undescribed, and unknown types) to prompt the EEOC to investigate
7 	The Court notes that Count III alleges, in part, that “Plaintiffs have been
discriminated against by Austal USA because of religious beliefs in the terms of . . .
discharge (inactive status and/or termination) . . . .” 	(Doc. 49 at 36). 	To the extent
Count III can be construed to assert a claim based on the termination of Plaintiffs’
employment as a result of Austal’s failure to accommodate their religious beliefs,
which would fall within the scope of the allegations in Plaintiffs’ EEOC charges, such
claim is nevertheless subject to dismissal because it is duplicative of the “failure to
accommodate” claim in Count I.
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each type, to then be alleged in a federal complaint as ‘reasonably growing’ from such
Charges, lacks merit.” 	Id., 2023 U.S. Dist. LEXIS 99009, at *49-50, 2023 WL
3868571, at *16.
Plaintiffs’ EEOC charges could not reasonably have been expected to prompt
the EEOC to investigate claims other than the Title VII claim based on Austal’s
alleged failure to accommodate Plaintiffs’ religious beliefs and Plaintiffs’ resulting
termination. Plaintiffs’ new claims for disparate treatment religious discrimination,
religiously hostile work environment, and harassment on religious grounds are not
like or related to, nor do they reasonably grow out of, the allegations in Plaintiffs’
EEOC charges.8 	Accordingly, Counts III through V of the first amended complaint
are due to be dismissed because Plaintiffs failed to file timely EEOC charges with
respect to the claims raised in those counts and thus failed to exhaust their
administrative remedies as to those claims.9
8 	The record indicates that, with the exception of Plaintiff Dudley, Plaintiffs were
represented by counsel during their EEOC proceedings. (See Doc. 49-2). The Court
notes that while EEOC charges must be liberally construed when prepared without
the assistance of counsel, Green v. Elixir Indus., Inc., 152 F. App’x 838, 840 (11th Cir.
2005) (per curiam), this policy does not apply when the charge was prepared by or
with the assistance of counsel. Blalock, 84 F. Supp. 2d at 1302. In any event, even if
Plaintiffs’ EEOC charges are liberally construed, the religious-based disparate
treatment, hostile work environment, and harassment claims raised in Counts III
through V of the first amended complaint could not reasonably have been expected to
arise from the allegations in those charges.
9 	Because 	the 	claims 	of 	religious-based 	disparate 	treatment, 	hostile 	work
environment, and harassment in Counts III through V of the first amended complaint
exceed the scope of the charges Plaintiffs filed with the EEOC, the Court need not
reach Austal’s additional argument that these claims are untimely and unexhausted
because Plaintiffs did not attempt to assert them until they sought 	leave to file 	a
first amended complaint in November 2022. (See Doc. 50 at 13-14).
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B. 	The First Amended Complaint States A Plausible Claim For
Invasion of Privacy (Intrusion Upon Solitude/Seclusion).
Austal argues that Plaintiffs fail to state a claim upon which relief can be
granted for invasion of privacy by wrongful intrusion upon their solitude or seclusion
in Count VI because the first amended complaint does “not provide any specific facts”
as to each of the named Plaintiffs “to support their respective invasion of privacy
claim.” (Doc. 50 at 15). According to Austal:
Plaintiffs contend that Austal – generally speaking – committed a
number of wrongdoings which resulted in an invasion of their privacy.
In short, they allege that their “private information . . . pertaining to
confidential medical information, such as their vaccination status,
medical 	complications, 	and 	general 	medical 	information, 	were
repeatedly disclosed publicly through a multitude of mediums that was
permitted, endorsed, and/or permitted [sic] by Defendant.” . . . Fatal to
their claim is the fact that they did not provide any specific facts to
support their respective invasion of privacy claim. For example, as to
each Plaintiff specifically: what information was shared; who at Austal
shared this information; when was this information shared by each such
person who shared it, and how was it “repeatedly” shared; how did each
such 	person 	publicly 	share 	this 	information, 	i.e., 	through 	what
“multitude of mediums”; and how did Austal permit or endorse the
alleged disclosure, i.e., how is Austal liable for an intentional tort?
Noticeably absent from the First Amended Complaint are any such
details. This dearth of information is insufficient to state an invasion of
privacy claim.
(Id. (emphasis in original)).
Austal notes that the instant motion “is not the first time that Plaintiffs are
being made aware of their pleading deficiencies.” (Id. at 16). Austal cites the Court’s
April 10, 2023 order granting leave for Plaintiffs to file a first amended complaint,
which stated the following with respect to Plaintiffs’ proposed invasion of privacy
claim:
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[T]here are no specific allegations as to these defendants’ unlawful
disclosure of any of the five (5) Plaintiffs’ “vaccination status, medical
complications, and general medical information” and/or “publicly [sic]
display 	of 	Plaintiffs’ 	medical 	information 	regarding 	their 	medical
capabilities, 	medical 	preferences, 	and 	medical 	status.” 	Plaintiffs’
allegations are general, not specific to the Plaintiffs in this case, and so
precisely what the defendants did as to these Plaintiffs is unknown. . . .
Given the individualized and fact-dependent nature of this category of
invasion of privacy, the conclusory allegations are insufficient. But this
lack 	of 	specificity 	does 	not 	support 	futility. 	Instead, 	it 	supports
amendment 	which 	should 	be 	“freely 	given” 	in 	the 	absence 	of
countervailing factors. Due to the absence of countervailing factors,
Plaintiffs’ motion for leave to amend to file a First Amended Complaint
is GRANTED as to this claim on the condition that Plaintiffs shall file,
. . . a new first amended complaint which includes sufficient factual
allegations 	specific 	to 	the 	Plaintiffs 	and 	each 	of 	the 	defendants’
purported invasion of privacy acts and/or conduct.
(Doc. 48 at 19-20 (emphasis in original)).
Austal asserts that Plaintiffs “disavowed and ignored the Court’s direction”
because their operative first amended complaint pleads “nothing more than they had
already stated” in their proposed first amended complaint, “which the Court had
already told them was insufficient . . . to support their respective invasion of privacy
claims.” 	(Doc. 50 at 16 (emphasis in original)). 	Austal contends that Plaintiffs’
invasion of privacy claim “lacks any factual specificity” and “simply ‘tenders naked
assertions devoid of further factual enhancement,’ which are insufficient to lodge a
claim upon which relief can be granted.” (Id. at 19 (citation omitted)).
In response, Plaintiffs state:
On the face of Plaintiffs’ First Amended Complaint, the term “Plaintiffs”
was defined to include Plaintiff Baugh Jr., Plaintiff Dudley, Plaintiff
Skipper, Plaintiff Vela, and Plaintiff Woods. . . . Furthermore, there are
numerous facts contained within the First Amended Complaint that are
individually tailored to Plaintiff Baugh Jr., Plaintiff Dudley, Plaintiff
-
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Skipper, Plaintiff Vela, and Plaintiff Woods, which support a claim for
relief that exceeds beyond a “speculative level” for each named Plaintiff.
(Doc. 53 at 22).
In Count VI of the first amended complaint, Plaintiffs claim that Austal
invaded their privacy by intruding upon their solitude or seclusion in violation of
Alabama state law. 	(Doc. 49 at 41-42). 	Alabama has adopted the definition of the
“wrongful-intrusion branch of the invasion-of-privacy tort” found in The Restatement
(Second) of Torts, which states that “[o]ne who intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of another or his private affairs or concerns,
is subject to liability to the other for invasion of his privacy, if the intrusion would be
highly offensive to a reasonable person.” Johnston v. Fuller, 706 So. 2d 700, 702 (Ala.
1997) (quoting Restatement (Second) of Torts § 652B (1977)). A defendant is subject
to liability for wrongful intrusion “only when he has intruded into a private place, or
has otherwise invaded a private seclusion that the plaintiff has thrown about his
person or affairs.” Id.
The wrongful intrusion may be a physical intrusion into a place of seclusion,
or a wrongful intrusion into the plaintiff’s private affairs. 	Id.; see also Kelley v.
Worley, 29 F. Supp. 2d 1304, 1311 (M.D. Ala. 1998) (“One may invade another’s
privacy through either an intrusion upon a physical space or by an invasion of one’s
‘emotional sanctum’; the law prohibits a wrongful intrusion into either of these areas
of privacy.”) (citing Phillips v. Smalley Maint. Servs., Inc., 435 So. 2d 705, 711 (Ala.
1983)). 	“An intrusion upon solitude or seclusion can arise out of remarks about
private matters made to a third party.” Sorrells v. Lake Martin, Inc., 2011 U.S. Dist.
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LEXIS 14001, at *16, 2011 WL 627049, at *6 (M.D. Ala. Feb. 11, 2011). There may
also be a wrongful intrusion if “the means of gathering” information about the
plaintiff “are excessively objectionable and improper[.]” Johnston, 706 So. 2d at 702;
see also Hogin v. Cottingham, 533 So. 2d 525, 531 (Ala. 1988) (indicating that
wrongful intrusion occurs when there has been abrupt, offensive, and objectionable
prying into information that is entitled to be private).
“Specifically then, ‘[t]he tort of invasion of privacy/intrusion requires a plaintiff
to allege and prove ‘[1] the intentional wrongful intrusion [2] into the [plaintiffs’]
private activities [3] in such a manner as to outrage or cause mental suffering, shame,
or humiliation to a person of ordinary sensibilities.’” Abbott, 2023 U.S. Dist. LEXIS
99009, at *62-63, 2023 WL 3868571, at *21 (quoting Carter v. Innisfree Hotel, Inc.,
661 So. 2d 1174, 1178 (Ala. 1995)). “To withstand a motion to dismiss, a plaintiff may
allege a ‘physical intrusion into a place in which the plaintiff has secluded himself,’
‘an invasion of psychological solitude,’ or ‘examination into [the plaintiff’s] private
concerns’—so long as the plaintiff also asserts that the invasion would be offensive to
a reasonable person.” Hope v. BSI Fin., Inc., 2012 U.S. Dist. LEXIS 153971, at *16,
2012 WL 5379177, at *5 (N.D. Ala. Oct. 26, 2012) (quoting Phillips, 435 So. 2d at 710–
11).
In Count VI of their first amended complaint, Plaintiffs allege:
Plaintiffs’ 	private 	medical 	information 	at 	Defendant’s 	businesses
pertaining to confidential medical information, such as their vaccination
status, medical complications, and general medical information, were
repeatedly disclosed publicly through a multitude of mediums that was
permitted, endorsed, and/or permitted by Defendant.
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Austal USA’s actions infringed upon the intrusion upon seclusion theory
based upon their wrongful intrusion into Plaintiffs’ private activities in
such a manner that it caused severe outrage, mental suffering, shame,
and/or humiliation to . . . Plaintiffs and would otherwise cause such
effects to be felt by a person of ordinary sensibilities.
. . . Plaintiffs’ confidential medical information was shared publicly by
Defendant in an effort to coerce and otherwise compel Plaintiffs to
comply with its vaccination requirement. Austal USA’s conduct to
collect, disseminate, and failure to safeguard . . . Plaintiffs’ medical
information regarding their medical capabilities, medical preferences,
and medical status violates the ordinary decencies recognized in our
society.
The actions [of] Austal USA, as set out herein, violate Alabama state
law.
As a result of the actions of Austal USA, . . . Plaintiffs have been and
continue to be injured, suffering distress, humiliation, loss of prestige,
mental anguish, emotional pain and suffering, and monetary and
economic losses.
(Doc. 49 at 41-42).
The 	first 	amended 	complaint 	also 	includes 	the 	following 	allegations 	in
connection with Plaintiffs’ invasion of privacy claim:
This lawsuit is grounded in Defendant’s . . . intrusive conduct . . . .
***
. . . Plaintiffs . . . were told daily to get the vaccine or they were going to
be fired and that they should just resign instead. Plaintiffs . . . during
this time felt anxious, nervous, frustrated, and couldn’t eat because of
the stress and pressure placed upon them by their employer since
Defendant was attempted to compel Plaintiffs to set aside their sincerely
held religious beliefs as Christians at the expense of their career and
livelihood at Defendant’s business.
In an effort to mandate compliance for this decision, Austal USA
engaged in conduct to enforce compliance of this internal vaccine policies
among 	its 	leadership 	staff. 	Austal 	began 	implementing 	informal
procedures that prohibited travel of unvaccinated persons, threatening
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the jobs of individuals on the leadership team, ostracizing unvaccinated
persons 	from 	group 	meetings, 	and 	making 	jokes 	of 	persons 	who
expressed concern in receiving the vaccine for religious or medical
reasons. Plaintiffs, as well as several others, who were identified as
Austal leaders that expressed concern were confronted personally and
expressly told that “they should either get the vaccine or quit their jobs.”
Some individuals were told by Austal USA Leaders that “no other
corporation 	would 	hire 	them 	for 	being 	unvaccinated, 	so 	these
individuals were best off to receive the vaccine against their wishes.”
This conduct took place before and after Austal’s general employee
vaccine policy, which was announced on October 1, 2021.
***
On October 22, 2021, over 200 Austal USA employees who had not yet
taken one of the experimental vaccines, were rounded up, put in a room,
told to put their phones away, and to not record. At that point, an Austal
USA representative, President of Austal USA Rusty Murdaugh stated,
in part, that “all of your exemption requests have been denied” and that
the unvaccinated employees needed to receive one of the vaccines by the
date of October 27, 2021, or they would be terminated. When one
employee asked about whether they would still receive their yearly
bonus, which was set to be paid out on October 29, 2021, the President
Rusty Murdaugh said, “if you don’t get the vaccination by October 27,
2021, and you are obstinate or difficult, then you won’t get your bonus.”
President Rusty Murdaugh went on to say, “if you’re a jerk or if you hurt
this family, I’m taking it away from you.”
***
Every week from September 2021 through October 2021, Austal USA
Leaders had in-person meetings for only those Christians unvaccinated
persons where Defendant’s leadership made jokes at Plaintiffs expense,
villainized 	Plaintiffs, 	and 	disregarded/dismissed 	Plaintiffs 	religious
beliefs and medical complications. Even the President of Austal USA
Rusty Murdaugh would make disparaging comments such as “oh wow,
everyone is religious now?” Austal USA Leaders sprayed Lysol on
unvaccinated employees’ desks/cubicle when they left the area or say
they would want “beepers” to know when an unvaccinated person was
nearby. These actions were often accompanied with highly offensive
vulgar language almost weekly, and “if they did not like it, they can head
for the fucking door!” Plaintiffs and other unvaccinated persons were
told if they didn’t get the vaccine “their positions will be terminated,”
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“they will not be hired anywhere else,” and “Austal had begun the
process of searching for their replacement,” and that they aren’t
religious on meritless grounds. Austal USA Leaders and employees
would frequently belittle Plaintiffs’ and other Christian’s intelligence
levels and called them “anti-vaxxers”, stated “they had the plague”,
stated “they should be in quarantine”, and stated “they were going to
kill themselves, their families, and others because of their refusal to get
the vaccine.” Defendant’s actions were so persistent and severe that it
undermined Plaintiffs ability to effectively perform their job duties and
impacted their family life.
***
Even though Plaintiff Baugh Jr., Plaintiff Dudley, Plaintiff Skipper,
Plaintiff Vela, and Plaintiff Woods did not specifically indicate, explicitly
or implicitly, their vaccination status, vaccination preference, or any
other confidential medical information prior to the announcement of
Defendant’s 	COVID-19 	Vaccination 	Mandate, 	Plaintiffs’ 	respective
supervisors 	and 	managers 	would 	elicit 	statements 	informing 	all
unvaccinated individuals to receive the vaccination or be subject to
termination. 	These 	supervisors 	and 	managers 	would 	specifically
identify Plaintiff Baugh Jr., Plaintiff Dudley, Plaintiff Skipper, Plaintiff
Vela, and Plaintiff Woods within their respective workgroup, singled
these individuals out as unvaccinated persons with religious beliefs, and
subsequently 	communicated 	each 	Plaintiffs’ 	respective 	confidential
medical information without their consent.
Defendant’s 	executives 	seemingly 	turned 	the 	vaccinated 	cohort 	of
employees against the unvaccinated cohort of employees at Austal USA
by instigating fights and/or drama. Austal USA Leaders would daily pry
into the personal medical information and preferences of all members of
their workgroup and subsequently report such information to their
respective supervisors. Plaintiffs interpreted this policy as “turning
friends 	against 	friends” 	and 	Defendant’s 	seemingly 	manipulated
Plaintiffs’ once friendly coworkers into belligerent individuals who
would make offensive and degrading jokes about Plaintiffs’ religious
beliefs, reprimand Plaintiffs for small or trivial matters to punish them
for their religious views.
. . . Defendant’s vaccinated workforce was collecting confidential medical
information of their underling employees, disseminating the obtained
information to multiple other employees without Plaintiffs’ consent or
knowledge, and for those unvaccinated employees who were identified
as 	dissenters. 	Defendant’s 	supervisors 	and 	managers 	would
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intentionally target, harass, and/or frequently admonish Plaintiffs and
other 	like-situated 	persons 	at 	Austal 	USA 	in 	a 	public 	display 	to
embarrass or shame them. . . .
After Plaintiffs . . . were identified through these backchannels of data
collection 	and 	dissemination 	without 	their 	knowledge 	or 	consent,
Plaintiffs . . . were demonized. Plaintiffs were specifically targeted in
meetings, 	publicly 	shamed 	for 	their 	privately 	held 	beliefs 	and
confidential medical information among their workgroup and across the
entire company, be forcibly subject to meetings for only unvaccinated
persons . . . .
Plaintiffs feel Defendant was monitoring their private technological
data or communications as well as those unvaccinated persons at its
facilities to identify who remained unvaccinated so that Defendant’s
managerial staff could bring them into compliance with Defendant’s
COVID-19 Vaccination Mandate through punitive actions that would
result in public embarrassment or shame. Plaintiffs felt Defendant
eavesdropped 	on 	their 	and 	other 	unvaccinated 	employees’ 	private
conversations, 	surveilled 	these 	employees, 	and 	accessed 	and/or
monitored 	private 	medical 	data, 	statistics, 	information, 	and/or
messaging 	of 	their 	personal 	phones, 	computers, 	and/or 	electronic
devices, which were compiled in reports by Defendant and discussed for
months at meetings among several employees. Plaintiffs’ basis for this
contention was determined through Defendant’s access to information
not known or disclosed to third parties by Plaintiffs given its personal
and sensitive matter, but was somehow readily available, known, and
frequently utilized by Plaintiffs’ supervisors and managers against each
Plaintiff and believed to be a harassment tactic to coerce vaccination
compliance.
Plaintiffs contend there are video cameras in the bathrooms at Austal
USA’s Mobile, Alabama, facility that have been used to harass and or
punish individuals who share the same Christian beliefs as they do.
Unvaccinated persons were also targeted and cited for taking too long of
bathroom breaks whereas vaccinated workers were not reprimanded
even 	when 	taking 	the 	same 	amount 	of 	time. 	Plaintiffs 	felt
uncomfortable, embarrassed, and were constantly afraid of when they
would be admonished by Defendant’s vaccinated managerial workforce
next 	due 	to 	the 	specific 	targeting 	of 	Christians 	in 	opposition 	of
Defendant’s COVID-19 Vaccination Mandate that was pervasive during
Fall 2021.
***
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. . . Defendant’s COVID-19 Vaccination Mandate, COVID-19 Masking
Policy, COVID-19 Social Distancing Policy, and COVID-19 Testing
Policy, were all unreasonably . . . intrusive because of the means by
which Defendant subjected Plaintiffs’ . . . to obtain information and
enforce compliance of Defendant’s COVID-19 policies and procedures. .
. . :
. . . (ii) the medical tests and masking policies tests were physically
intrusive and degrading to Plaintiffs; . . . (vi) coerced submission to
a regime of Government mandated medical testing has a severe
emotional and mental impact on Plaintiffs; (vii) the medical tests
and masking policies would only be administered to Plaintiffs and
other unvaccinated Christians . . . ; (viii) Plaintiffs were isolated
and ostracized from the majority of their peers to be subject to this
unreasonable testing, social distancing, and masking requirement
while Austal USA’s vaccinated workforce was not subject to these
policies . . . ; (ix) Austal USA’s actions to compel its employees to
undergo a medical procedure without providing informed consent
to the effects of the medical procedure infringes on Plaintiffs’
fundamental rights to personal autonomy, bodily integrity, and
right 	to 	refuse 	medical 	treatment; 	. 	. 	. 	(xiv) 	the 	collection,
dissemination, reporting, surveillance, and/or other actions taken
to disseminate, generate, and identify facility data, reports, and/or
statistics 	of 	unvaccinated 	employees’ 	confidential 	information,
which Defendant had failed to adequately safeguard from the
public and its employees.
Defendant’s 	COVID-19 	Vaccination 	Mandate, 	COVID-19 	Masking
Policy, COVID-19 Social Distancing Policy, and COVID-19 Testing
Policy . . . unreasonably intruded upon Plaintiffs’ . . . privacy and
solitude.
Defendant required any vaccinated employee to prominently display a
vaccinated 	logo-sticker, 	which 	was 	provided 	to 	each 	vaccinated
employee, to wear on their hard hat. Plaintiffs and other unvaccinated
individuals did not receive the vaccination logo-sticker. This distinction
allowed Austal USA Leaders to further identify Plaintiffs and other
unvaccinated employees easily despite Plaintiffs never revealing their
confidential medical information to any person. . . .
***
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Plaintiffs . . . were targeted on the basis of their religious faith as
Christians 	and 	subject 	to 	Defendant’s 	pervasive 	intrusions 	and
harassing actions to ensure compliance of its . . . COVID-19 Vaccination
Mandate.
(Id. at 2, 7-9, 24, 28-34).
Thus, Plaintiffs allege that Austal intruded upon their solitude or seclusion by
wrongfully subjecting them to intrusive medical testing; accessing their private
confidential medical information without their consent or knowledge; obtaining,
collecting, disseminating, and failing to safeguard their private confidential medical
information; monitoring their private communications without their knowledge;
eavesdropping on their private conversations with other employees and when they
used their personal electronic devices; and surveilling them in sensitive and private
locations. 	Plaintiffs 	also 	allege 	that 	Austal 	compiled 	their 	private 	medical
information into reports, which were discussed with and disseminated to other
employees at the Austal facility as a means to isolate, ostracize, coerce, and compel
Plaintiffs 	and 	other 	unvaccinated 	employees 	to 	comply 	with 	Austal’s 	vaccine
mandate. 	Plaintiffs further allege that Austal involuntarily communicated their
confidential 	medical 	information 	by 	requiring 	meetings 	attended 	only 	by
unvaccinated employees, and by implementing a “vaccination logo-sticker” program
to allow easy identification of “Plaintiffs and other unvaccinated employees . . .
despite Plaintiffs never revealing their confidential medical information to any
person.”
Further, Plaintiffs allege that they were “subject to Defendant’s pervasive
intrusions and harassing actions to ensure compliance” with Austal’s COVID-19
-
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vaccination mandate. Plaintiffs also allege that Austal wrongfully intruded into their
private activities in a manner that caused them “severe outrage, mental suffering,
shame, and/or humiliation” and “would otherwise cause such effects to be felt by a
person of ordinary sensibilities.” 	Finally, Plaintiffs allege that Austal’s actions
caused suffering, distress, humiliation, loss of prestige, mental anguish, emotional
pain and suffering, and economic losses.
Having reviewed the first amended complaint at length, the undersigned
concludes that Plaintiffs have included sufficient factual allegations to state a facially
plausible claim for invasion of privacy based on intrusion upon their seclusion or
solitude. 	The invasion of privacy allegations asserted by Plaintiffs Baugh, Dudley,
Skipper, Vela, and Woods in this case are substantially similar to the information
alleged by the fifty-four plaintiffs in Abbott, which this Court found “sufficient . . . to
support 	the 	facial 	plausibility 	of 	their 	invasion 	of 	privacy 	(intrusion 	upon
seclusion/solitude) claim.” 	Abbott, 2023 U.S. Dist. LEXIS 99009, at *66, 2023 WL
3868571, at *22; see also Hughes v. Wal-Mart Stores, East LP, 2018 U.S. Dist. LEXIS
99190, at *13-14, 2018 WL 3352974, *5 (M.D. Ala. June 12, 2018) (“Plaintiff bases
this claim upon . . . Defendants discussing Plaintiff’s alleged unfitness with her
coworker and in front of Wal-Mart customers [and] . . . Defendants discussing
information regarding Plaintiff’s health, including the status of her prescriptions for
pain medication, with her co-workers. . . . [T]he Court concludes that Plaintiff states
a claim for invasion of privacy based upon intrusion, or a claim for intrusion upon
seclusion, which is plead sufficiently to survive Defendants’ Motions to Dismiss.”);
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Drew v. Quest Diagnostics, 992 F. Supp. 2d 1177, 1188 (N.D. Ala. 2014) (“To support
their invasion of privacy claim, plaintiffs allege that defendants ‘committed a
wrongful intrusion upon the Plaintiffs’ solitude or seclusion by improperly disclosing
untrue and incorrect health information, namely Kenneth Drew’s HIV status and
Herpes status.’ . . . [T]hey assert that the claim is based upon the improper disclosure
of ‘untrue and incorrect health information,’ and that is indeed what the Amended
Complaint alleges. 	The court agrees that the invasion of privacy claim can proceed
based upon the disclosure of incorrect information[.]”).
Austal makes no real attempt to argue that, as a general matter, the facts
alleged are insufficient to support the facial plausibility of a claim for invasion of
privacy based on wrongful intrusion. Instead, Austal takes issue with the specificity
of Plaintiffs’ allegations and focuses on the Court’s statement in the April 10, 2023
order that the invasion of privacy allegations in Plaintiffs’ proposed first amended
complaint were insufficient because the allegations were “general, not specific to the
Plaintiffs in this case, and so precisely what the defendants did as to these Plaintiffs
is unknown.” 	(Doc. 48 at 19 (emphasis in original)). 	Austal argues that the first
amended complaint fails to state a claim for invasion of privacy because it does not
provide “sufficient factual allegations specific to the Plaintiffs and each of the
defendants’ purported invasion of privacy acts and/or conduct.” (Doc. 50 at 16 (citing
Doc. 49 at 19-20)).
Austal’s arguments are not persuasive. 	First, contrary to Austal’s assertion,
the invasion of privacy allegations in Plaintiffs’ operative first amended complaint
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are not “virtually identical” to those in their proposed first amended complaint. On
the contrary, the operative complaint contains a number of additional allegations
relating to invasion of privacy that were not included in the proposed amendment
that the Court addressed in the April 10, 2023 order. Further, as Plaintiffs note, the
first amended complaint defines the term “Plaintiffs” to include Plaintiffs Baugh,
Dudley, Skipper, Vela, and Woods collectively, and almost all of the above-listed
allegations connected to Plaintiffs’ invasion of privacy claim are applicable to Baugh,
Dudley, Skipper, Vela, and Woods - although many of the allegations undoubtedly
apply to other former Austal employees as well. 	Also, as mentioned above, the
invasion of privacy allegations in the first amended complaint complaint here are
substantially similar to those of the plaintiffs in Abbott, which this Court recently
found to be sufficient to state a facially plausible claim for relief despite the relative
paucity of plaintiff-specific invasion of privacy allegations and the fact that most of
the relevant allegations were generally asserted on behalf of all fifty-four plaintiffs.
See Abbott, 2023 U.S. Dist. LEXIS 99009, at *64-66, 2023 WL 3868571, at *21. When
taken as true and viewed in the light most favorable to Plaintiffs at this juncture, the
relevant factual allegations in the first amended complaint are sufficiently detailed
and specific to “nudge[ Plaintiffs’ invasion of privacy] claims across the line from
conceivable to plausible[.]” 	See Twombly, 550 U.S. at 570 (“[W]e do not require
heightened fact pleading of specifics, but only enough facts to state a claim to relief
that is plausible on its face.”). 	Accordingly, the undersigned recommends that
Austal’s motion to dismiss Plaintiffs’ invasion of privacy claim in Count VI be denied.
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IV. 	CONCLUSION
For the reasons set forth above, the undersigned RECOMMENDS that
Austal’s motion to dismiss Counts III - VI of Plaintiffs’ first amended complaint (Doc.
50) be GRANTED IN PART and DENIED IN PART, as follows:
Austal’s motion to dismiss Plaintiffs’ Title VII claims for disparate treatment
religious discrimination (Count III), hostile work environment (Count IV), and
harassment on religious grounds (Count V) is due to be GRANTED because Plaintiffs
failed to exhaust their administrative remedies with respect to those claims.
Austal’s motion to dismiss Plaintiffs’ claim for invasion of privacy by wrongful
intrusion upon their solitude or seclusion in violation of Alabama state law (Count
VI) is due to be DENIED because Plaintiffs stated a facially plausible claim for relief
with respect to that claim.
NOTICE OF RIGHT TO FILE OBJECTIONS
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. GenLR 72(c). 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
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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.
In order to be specific, an objection must identify the specific 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 20th day of July, 2023.
/s/ WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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