Abbott et al v. Austal USA, LLC

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DENNIS ABBOTT, et al., 	)
Plaintiffs, 	)
)
v. 	) 	CIVIL ACTION: 1:22-00267-KD-C
)
AUSTAL USA, LLC, 	)
Defendant. 	)
ORDER
This matter is before the Court on the Plaintiffs' motion to amend the complaint (with
proposed second amended complaint) (Doc. 94; Doc. 94-1).
I. 	Background
On July 4, 2022, 54 Plaintiffs (Plaintiffs)1 initiated this action against Defendant Austal
USA, LLC (Austal). (Doc. 1). On July 17, 2022, Plaintiffs filed a First Amended Complaint. (Doc.
4). The First Amended Complaint is the operative complaint in this case.
In the First Amended Complaint Plaintiffs allege three (3) claims against Austal: 1) Title
VII religious discrimination (failure to accommodate) (Count I - all Plaintiffs); 2) ADA (Title I)2
disability discrimination (failure to accommodate) (Count II - Plaintiffs Jason Dyson, Kristopher
1 There were 54 original plaintiffs in this case. However, this is not a class action. Plaintiffs are: Dennis
Abbott, Kenneth Allison, Steven Bailey, Douglas Beck, John Boyd, Joseph Taylor Brown, Kristin Carroll,
Tracy Chapman, Pheap Chum, Christopher Colvin, Michael Crenshaw, Melissa Daidone, Clarence Davis,
Samantha Davis, Sharon Davis, Timothy Daw, Jason Dyson, Russell Dyson, Jessie Ellison, Joseph Hackett,
Christopher Hayes, Kristopher Holifield, Joseph Jalbert, Christopher Jordan, Nathan Kantola, Zackary
Kesterson, Ryan King, Christopher Lancaster, James Lindsey, Keith Lovett, Glenn Lund, Necos Martin,
Patrick Martin, Jimmy Middleton, Devan Tyler Mims, Charles Myers, Robert Olszandski, Shane Robinson,
Anhkiet Rodriguez, Antonio Ross, Charles Roy, Joseph Schwall, Bradley Schwartz, Alexis Scott, Justin
Stewart, Anthony Swann, Joe D. Thompson, Christopher Thornton, David Tolbert, Mark Vardaman, Martin
Van den Bosch, Steven Woodward, Elisha Wright, and Timothy Yace.
2 Plaintiffs allege disability discrimination in employment.
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Holifield, Christopher Jordan, and Antonio Ross); and 3) negligence/gross negligence (deprivation
of constitutional rights regarding religious beliefs) (Count III - all Plaintiffs). (Doc. 4). Notably,
Plaintiffs' federal claims allege as follows against Austal:
COUNT I
... Title VII ... Religious Discrimination-Failure to Provide Accommodation ...
***
Plaintiffs ... are entitled to their fundamental right to exercise their religion of choice
afforded to them under the First Amendment of the United States Constitution ... Plaintiffs
are members of a protected class, all of which being devout members of the Christian faith.
Plaintiffs hold sincere religious beliefs that preclude them from receiving any of the
experimental COVID-19 vaccines.
Plaintiffs informed Austal ... of their sincerely held religious beliefs and requested religious
exemptions from the vaccine mandate.
During the course of Plaintiffs' employment ... and since the announcement of .... mandate,
Plaintiffs were subjected to a discriminatory, hostile, and offensive work environment
because of their religious beliefs. This discriminatory, hostile, and offensive work
environment included, but was not limited to:
#1- Disparaging and unfavorable treatment by employees, supervisors, managers,
and agents of Austal ... as compared to similarly situated employees who received
one of the three experimental vaccines.
#2- Being terminated for not receiving one of the three experimental vaccines, all
of which have proven to have a vast array of serious side effects and have caused
an increasing number of deaths.
Austal .... refused to engage in a meaningful interactive process with Plaintiffs regarding
their religious accommodation requests ... only responded to Plaintiffs with questions
designed to challenge the sincerity of their religious beliefs.
Austal ... failed to provide Plaintiffs with reasonable accommodations for their religious
beliefs ... advising Plaintiffs that they would be deemed to have "voluntarily resigned" if
they did not obtain an experimental COVID-19 vaccine by October 27th, 2021.
Through Defendants actions, policies, employment practices, and conduct directed at
Plaintiffs' religious faith, in addition to failing to engage in the interactive process or offer
any reasonable accommodations, Austal ... deprived the Plaintiffs of their constitutional
right to protection under law in violation of Title VII ... this deprivation was done
intentionally, purposefully, and willfully.
Count II
ADA ... Disability Discrimination-Failure to Provide Accommodations...
***
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... Jason Dyson, Kristopher Holifield, Christopher Jordan and Antonio Ross informed
Austal of their medical conditions requiring an exemption from ... [the] mandate or
obviating the need for one the three experimental vaccines.
Plaintiffs requested reasonable medical accommodations from ... [the] mandate for their
medical conditions.
... Austal ... refused to engage in an interactive process with Plaintiffs regarding their
medical accommodation request.
Austal ... violated the ADA. .. when it denied Plaintiffs' accommodation requests.
Austal ... discriminated against Plaintiffs Jason Dyson, Kristopher Holifield, Christopher
Jordan and Antonio Ross based on their medical conditions.
Austal .... failure to provide medical accommodations has harmed the Plaintiffs.
By failing to engage in the interactive process of offering reasonable accommodations and
subsequently terminating Plaintiffs ... on their refusal to take one of the three experimental
COVID-19 vaccines into their bodies, Austal ... discriminatory actions were intentional
and/or reckless ...violation of the ADA ...
(Doc. 4 at 31-33).
Additionally, 	the 	First 	Amended 	Complaint 	set 	forth 	the 	following 	employment
discrimination related allegations:
This is an action ... redress unlawful discrimination, harassment, and retaliation against the
Plaintiffs based on those who requested religious and/or medical accommodations from
Defendant's COVID-19 vaccine mandate .... Defendant has engaged in an unfounded
pattern and practice of religious and disability discrimination in employment opportunities
and to secure the protection for and to redress the deprivation of such rights secured by
Title VII ... [ADA] ... which provide for relief against discrimination and harassment in
employment on the basis of religion and medical status and retaliation related thereto ...
Defendant has subjected them to a hostile work environment and wrongful termination
based on their sincerely held religious beliefs and/or medical capabilities.
Rather than complying with its obligations under Title VII and the ADA, Austal ....
informing the requesting employees that they would be effectively terminated if they didn't
receive one of three experimental vaccines.
Austal ... actions left the Plaintiffs with the impossible choice of either taking one of the
three experimental COVID-19 vaccines, at the expense of their religious beliefs and/or
health, or losing their livelihoods ... Austal ... violated Title VII ... and the ADA by failing
to engage in the interactive process and providing reasonable accommodations ....
***
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This case challenges Austal's decision to implement a COVID-19 vaccine mandate
without also granting reasonable accommodations as required under Title VII and
the ADA ...
***
... Austal ... implemented the ... vaccine policy to all of its' employees on October 9th ...
the communication went on to state:
"An employee with a disability ... who has a qualifying medical condition that
contraindicates vaccination, or who objects to being vaccinated on the basis of a sincerely
held religious belief/practice, can request an exemption/accommodation ... Approval ...
will be subject to specific legal requirements. Notification will be given to the employees
if the requirements are not met or cannot be accommodated."
... Plaintiffs had submitted a religious and/or medical exemption within the time frame
allotted... over 200 Austal Employees who had not yet taken one of the experimental
vaccines .... on ... October 22, 2021 ... were told, in part, that "all of your exemption
requests have been denied" and that they needed to receive one of the vaccines by the
date of October 27th or they would be terminated ...
***
... [Subsequently] ... Plaintiffs reported to work as their job duties required, and at the end
of their shift, their security badges were turned off...
***
Title VII .... prohibits Austal from engaging in numerous forms of discrimination in
virtually every employment circumstance ...
***
...under the ADA, Austal ... may not "discriminate against a qualified individual on the
basis of a disability." ...
***
... Plaintiffs .... possess sincerely held religious beliefs and/or have experienced previous
medical complications with vaccine injections, which have made them hesitant to allowing
the injecting of a foreign "experimental" substance into their bodies against their express
consent ...
***
... as members of the Christian faith, they possess sincerely held religious beliefs against
receiving compulsory injections of any of the experimental vaccines due to the fact that the
COVID-19 vaccines have been manufactured using fetal cell lines ("fetal tissue") from
induced abortions, which is against their conscience, beliefs and religion.
.... Jason Dyson, Kristopher Holifield, Christopher Jordan and Antonio Ross also assert
that, given recent medical complications stemming from previous vaccines (evidenced in
medical records), that they have documentable medical evidence that serve as a compelling
reason to not receive any of the experimental COVID-19 vaccines.
... Plaintiffs ... possess sincerely held religious beliefs and/or documentable medical
evidence as to why they were hesitant to adhere to Austal ... policy mandating COVID-19
vaccines. .... this hesitancy was summarily dismissed when Austal .... denied all of the
Plaintiffs' valid religious and/or medical exemption requests and subsequently terminated
all of the Plaintiffs without regard to their religious beliefs and/or medical status. Moreover,
Austal failed to even provide an opportunity for Plaintiffs to engage in reasonable
discussions concerning their hesitancy to receiving the one of the COVID-19 vaccines.
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(Doc. 4 at 3-4, 16, 23-26, 30-31 (emphasis added)).
On August 16, 2022, Austal filed its Answer to the First Amended Complaint. (Doc. 6).
Austal acknowledged Plaintiffs' Title VII and ADA claims while generally denying any unlawful
conduct or entitlement to relief, and denied that it subjected Plaintiffs to a "'hostile work
environment and wrongful termination based on their sincerely held religious beliefs and/or
medical capabilities,' or to any other unlawful conduct[.]" (Doc. 6 at 2).
On September 6, 2022, Plaintiffs moved to amend the complaint; the proposed second
amended complaint alleged new Title VII and ADA claims (Title VII religious discrimination,
Title VII hostile work environment, Title VII religious harassment, ADA disability discrimination
(Plaintiffs Jordan/Ross), ADA hostile work environment (Plaintiffs Jordan/Ross), ADA disability
harassment (Plaintiffs Jordan/Ross), and Section 504 Rehabilitation Act disability discrimination
(Plaintiffs Jordan/Ross)). (Docs. 18, 23-1). The motion was denied on September 22, 2022. (Doc.
25). 	On November 1, 2022, Plaintiffs again sought leave to file a second amended complaint
which would include five (5) defendants and 16 state/federal claims based on "newly discovered
facts" "through research into Defendant's business dealings, Defendant's ... documentation
provided to its employees during Fall 2021, interviewing the total ... Plaintiffs .... among the 3
lawsuits .... former employees[.]" (Doc. 30). The proposed new claims included the Title VII and
ADA claims Plaintiffs had previously sought to allege in September 2022. Austal opposed
Plaintiffs' motion based on futility and frivolity. (Doc. 42). In reply, Plaintiffs offered "an
alternative proposed amended complaint" to "remedy any issues" related to federal pleading
standards (Doc. 44-1) in lieu of the initial proposed second amended complaint (Doc. 30-1). (Doc.
44 at 24). In March and April 2023, rulings issued in the other Austal cases (CV 1:22-328 and CV
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1:22-329 respectively) regarding Plaintiffs' motions to amend and proposed amended complaints
in those cases. Given those rulings, in mid-April 2023 Plaintiffs voluntarily withdrew their
alternative proposed second amended complaint in this case, voluntarily dismissed certain claims
and defendants, and requested leave of Court to file a new modified proposed second amended
complaint and new motion to amend in light of the rulings in those cases. (Doc. 90). The Court
granted the Motion, ordered Plaintiffs to file a new motion to amend with a new proposed second
amended complaint, and set a briefing schedule. (Docs. 91, 92).
On April 25, 2023, the 54 Plaintiffs filed a new motion to amend their complaint (Doc. 94),
a new proposed Second Amended Complaint (Doc. 94-1), and their EEOC Charges (Doc. 94-2).
In the proposed Second Amended Complaint, Plaintiffs allege the following new claims against
Austal: 1) by all Plaintiffs -- Count IV Title VII Religious Discrimination (Disparate Treatment),
Count V Title VII Religious Discrimination (Hostile Work Environment), and Count VI Title VII
Religious Discrimination (Religious Harassment); and 2) by Plaintiffs Christopher Jordan and
Antonio Ross -- Count VII ADA Disability Discrimination (Disparate Treatment), Count VIII
ADA 	Disability 	Discrimination 	(Hostile 	Work 	Environment), 	Count 	IX 	ADA 	Disability
Discrimination (Disability Harassment), and Count X Violation of Section 504 Rehabilitation Act
of 1973 (Disability Discrimination); and 3) by all Plaintiffs -- Count XI Violation of Alabama
State Law: Invasion of Privacy (Intrusion & Seclusion Theory). (Doc. 94-1 at 45-59).
Specifically, all plaintiffs allege the following new Title VII claims against Austal for
religious disparate treatment (Count IV), religious hostile work environment (Count V), and
religious harassment (Count VI):
COUNT IV
Violation of Title VII ...
Disparate Treatment - Religious Discrimination ...
---
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***
... Plaintiffs have been discriminated against by Austal ... 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 ... 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 ...
The selection procedures of Austal ... 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 the .... 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 ... policies are only targeted
at the ... Plaintiffs ....
Austal ... 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, the ... 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 ....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 the ... Plaintiffs’ religious beliefs, Austal ... would not have engaged in such
conduct that had a disparaging effect upon the .. Plaintiffs ....
Austal ... failed to take any prompt and effective action reasonably calculated to result in
the prevention of and/or remedy of the religious discrimination of the ... Plaintiffs.
Through Austal .... 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 ... intentionally or recklessly deprived the ... Plaintiffs of their
constitutional rights to protection under law in violation of Title VII.
***
Count V
Violation of Title VII ...
Creation of a Hostile Work Environment
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***
.... Plaintiffs suffered mistreatment based ... 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.
... Plaintiffs undertook all requisite and applicable procedures to inform Austal ... 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 ....
Austal ... is responsible for the creation of a hostile work environment under a theory of
vicarious liability or direct liability. Austal ... directly engaged in the consistent harassment
and directly contributed to the creation of a hostile work environment.
Austal ..., 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 ... 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 ... 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 ... intentionally or recklessly deprived the .... Plaintiffs of
their constitutional rights to protection under law in violation of Title VII.
***
COUNT VI
Violation of Title VII...
Harassment on Religious Grounds
***
Title VII .... prohibits Austal ... from discriminating against its employees on the basis of
their sincerely held religious beliefs.
Austal ... conduct was so severe or pervasive that it altered the terms, conditions, or
privileges of employment.
... Plaintiffs undertook a myriad of requisite and applicable procedures to inform Austal ...
of the harassment and the culture of toxicity pertaining to religion.
Austal ... is responsible for such harassment under ... vicarious ... or direct liability.
... Austal ... 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 ....
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Austal ... 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 the ...
Plaintiffs and were in fact one of the primary sources of the harassing conduct.
Through Austal ... actions, policies, employment practices, and conduct directed at the ...
Plaintiffs’ religious faith, in addition to failing to engage in the interactive process or offer
any accommodations, Austal ... intentionally or recklessly deprived the ... Plaintiffs of their
constitutional rights to protection under law in violation of Title VII ...
(Doc. 94-1 at 48-52).
Separately, Plaintiffs Jordan/Ross allege the following new claims against Austal for ADA
disparate treatment, hostile work environment, and harassment (Counts VII-IX):
... COUNT VII ... DISPARATE TREATMENT ...
... Plaintiffs have been discriminated against by Austal ... because of their disability status
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 ... engaged in and continues to engage in a pattern and practice of discriminating
against its employees on the basis of disability, with respect to wages/compensation,
promotions, job assignments, discipline, discharge (inactive status and/or termination), and
other terms, conditions, and privileges of their employment. ....
...The selection procedures of Austal ... have and continue to have a disparate effect on
employees who have disabilities, including ... Plaintiffs.
Jobs which could potentially result in promotions for .... Plaintiffs are not posted and
instead given to individuals who do not express their disability status.
Employees 	who 	reveal 	their 	disability 	status 	were 	denied 	positions, 	stripped 	of
responsibilities, and were subject to disciplinary actions at disproportionate rates than
individuals who did not express such medical complications .... policies are only targeted
... Plaintiffs ....
Austal USA hiring practices and promotion process delineate a preference to only hire
individuals that do not express such disability status.
In the absence of such disability discrimination, Plaintiffs would have a greater opportunity
of both supervising and being supervised by persons of their same disability, having
persons of their same disability 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 disability ...
Plaintiffs ... would have been significantly improved and .... less likely to have been
subjected to disability bias in such decisions to the same degree that they have been.
---
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But-for ... Plaintiffs’ disabilities, Austal ... would not have engaged in such conduct that
had a disparaging effect upon them ...
Austal ... failed to take any prompt and effective action reasonably calculated to result in
the prevention of and/or remedy of the disability discrimination ....
Through Austal ... actions, policies, employment practices, and conduct directed at ...
Plaintiffs disability status, in addition to failing to engage in the interactive process or offer
any accommodations, Austal ... intentionally or recklessly deprived .. Plaintiffs of their
constitutional rights to protection ... in violation of the ADA...
***
... COUNT VIII ... HOSTILE WORK ENVIRONMENT
The ADA prohibits Austal ... from discriminating against its employees on the basis of
their disability.
... Plaintiffs suffered mistreatment based on their protected characteristic as disabled
individuals. Austal ... 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.
... Plaintiffs undertook all requisite and applicable procedures to inform Austal ... of the
harassment and toxicity that was pervasive around the workplace.
... Plaintiffs’ subjugation to such conduct that was motivated on disability grounds has been
authorized, ratified, encouraged, and condoned by Austal ....
Austal ... is responsible for the creation of a hostile work environment under ... vicarious
... or direct liability. Defendants directly engaged in consistent harassment and directly
contributed to the creation of a hostile work environment.
Austal ... 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 ... failed to take any prompt and effective action reasonably calculated to result in
the prevention and remedy of the disability harassment, disability discrimination, and/or
creation of a hostile work environment of ... Plaintiffs.
Through Austal .. actions, policies, employment practices, and conduct directed at
Plaintiffs’ disability status, in addition to failing to engage in the interactive process or
offer any accommodations, Austal ... intentionally or recklessly deprived ... Plaintiffs of
their constitutional rights to protection ... in violation of the ADA.
***
... COUNT IX ... HARASSMENT ON DISABILITY GROUNDS
... The ADA prohibits Austal .. from discriminating against its employees on the basis of
their disability.
Austal ... conduct was so severe or pervasive that it altered the terms, conditions, or
privileges of employment.
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,...Plaintiffs undertook a myriad of requisite and applicable procedures to inform Austal ...
of the harassment and the culture of toxicity regarding disability Austal ... are responsible
for such harassment under ... vicarious ... or direct liability.
... Austal ... 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 ....
Defendants failed to take any prompt and effective action reasonably calculated to
result in the prevention of and/or remedy of the disability harassment and discrimination
... and were ... one of the primary sources of the harassing conduct.
Through Austal .... actions, policies, employment practices, and conduct directed at
Plaintiffs’ disability status, in addition to failing to engage in the interactive process or
offer any accommodations, Austal ... intentionally or recklessly deprived .... Plaintiffs of
their constitutional rights to protection ... in violation of the ADA....
***
(Doc. 94-1 at 53-57).
Rather than file a Response directly to Plaintiffs' motion, Austal filed a Fed.R.Civ.P. Rule
12(b)(6) motion to dismiss Counts IV-IX and Count XI of the proposed Second Amended
Complaint. (Doc. 95). "While Austal acknowledges that this Court has not yet entered an Order
on Plaintiffs’ Motion, in the interest of efficiency and based on the Court’s Orders in .. [the other
cases] ... granting Plaintiffs leave to filed amended complaints that are virtually identical to the
Amended Complaint proposed by Plaintiffs here, Austal ... waives its filing of a response to
Plaintiffs’ Motion and ... proceeds with filing this Motion to Dismiss." (Doc. 95 at 1 at note 1, 5).3
A motion to dismiss a pending proposed amended complaint is premature, but in the
interests of efficiency, the Court will consider the arguments.
II. 	Rule 15 Amendments & The Proposed Second Amended Complaint
Rule 15(a) of the Federal Rules of Civil Procedure governs amendments as follows:
a) Amendments Before Trial.
3 Austal cites "Allen, et al. v. Austal USA, LLC, 1:22-cv-00321-KD-B and Baugh, et al. v. Austal USA, LLC, 1:22-
cv-00329-KD-C." There is no Allen CV 1:22-321 case; the Allen case is CV 1:22-328.
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(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within: (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.
(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party's written consent or the court's leave. The court should
freely give leave when justice so requires.
The timeframe for amendment as a matter of course has passed: Plaintiffs' Complaint was filed on
July 4, 2022 (Doc. 1) and Plaintiffs filed a First Amended Complaint on July 17, 2022 (Doc. 4)
which Austal answered on August 16, 2022 (Doc. 6). The next motion to amend, to file a second
amended complaint, was filed on November 1, 2022 -- more than 21 days after Austal filed its
Answer and so Plaintiffs did not move to amend within 21 days after service of same. Plaintiffs'
current motion was filed on April 25, 2023. Thus, Rule 15(a)(2) provides the only avenue for
amendment. And absent Austal's consent -- which has not been given -- leave of Court is required.
Leave should be freely given “when justice so requires” except in the presence of
countervailing factors such as undue prejudice to the opposing party and futility of the amendment.
See, e.g., Foman v. Davis, 371 U.S. 178, 182 (1962); Bartronics, Inc. v. Power-One, Inc., 245
F.R.D. 532, 534 (S.D. Ala. 2007). “[U]nless a substantial reason exists to deny leave to amend,
the discretion of the district court is not broad enough to permit denial[.]” City of Miami v. Bank
of Am. Corp., 800 F.3d 1262, 1286 (11th Cir. 2015) (citation omitted). Courts “may consider
several factors ... including ‘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, [and] futility of amendment.” Perez v.
Wells Fargo N.A., 774 F.3d 1329, 1340–1341 (11th Cir. 2014).
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Notably, leave to amend may be denied “when such amendment would be futile.” Hall v.
United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir. 2004). Per Garrett Inv., LLC v. SE Prop.
Hldgs., LLC, 2013 WL 1191237, *2 (S.D. Ala. Mar. 22, 2013):
..... a “district court may deny leave to amend a complaint if it concludes that the
proposed amendment would be futile, meaning that the amended complaint would
not survive a motion to dismiss.”... “must be dismissed if it fails to state a claim
upon which relief could be granted.”... the reviewing court must ‘accept[ ] the
factual allegations in the complaint as true and construe [ ] them in the light most
favorable to the plaintiff” Id. (citation omitted). Thus, the ... [claim] ... must “ ‘state
a claim for relief that is plausible on its face.’” Id. quoting Bell Atlantic 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. quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678... (2009). However, the ... [claim] “need not
include detailed factual allegations, but it must set forth ‘more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
do.’” Id. quoting Twombly, 550 U.S. at 555...
See also e.g., New York Life Ins. Co. v. Grant, 57 F.Supp.3d 1401, 1409-1410 (M.D. Ga. 2014).
As stated in Federal Home Loan Corp. v. Brooks, 2014 WL 5410236, *1 (N.D. Ala. Oct. 23, 2014):
...the Federal Rules...require only that a complaint ... provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a) ... The complaint must include enough facts “to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 ... Ultimately, the well-pleaded
complaint must present a reasonable inference from the facts it alleges that show a
defendant is liable. Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211,
1215 (11th Cir. 2012). To survive...the allegations ... must permit the court based
on its “judicial experience and common sense ... to infer more than the mere
possibility of misconduct.” Iqbal, 129 S.Ct. at 1949...
And per Gulf Coast Mineral, LLC v. Tryall Omega, Inc., 2016 WL 344960, *1 (M.D. Ala. Jan.
27, 2016):
“Determining whether a complaint states a plausible claim for relief [is] ... a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.... If there are “enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence” to support the claim,
there are “plausible” grounds for recovery, and a motion to dismiss should be
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denied. Twombly, 550 U.S. at 556 .... The claim can proceed “even if it strikes a
savvy judge that actual proof of those facts is improbable, and that a recovery is
very remote and unlikely.” Id. (citation and internal quotation marks omitted).
III. 	Plaintiff Kristopher Holifield4
In the proposed Second Amended Complaint, Plaintiffs name Kristopher Holifield as a
party plaintiff. Austal asserts that Plaintiff Holifield was dismissed from this case per Doc. 20.
(Doc. 95 at 1 at note 1). A review of the record reveals that Plaintiff Holifield was a plaintiff in the
original complaint and in the July 17, 2022 operative First Amended Complaint. 	(Docs. 1, 4).
However, on September 9, 2022, the Court ruled as follows: "Order. After a review of the pending
motion to dismiss and the briefs (Docs. 5, 13 & 19), it is clear that the parties agree that Austal[']s
motion to dismiss is due to be granted as to Plaintiff Holifield and Dysons respective ADA claims
(Count II), with prejudice, for failure to state a claim upon which relief can be granted. Given this
agreement, the claims will be removed by consent during the Rule 16 scheduling conference. The
disputed portion of the motion, whether to dismiss Plaintiff Holifield as a plaintiff from this
lawsuit, will be a topic of discussion during the scheduling conference." (Doc. 20). On October
25, 2022, after the scheduling conference, the Court ruled that Plaintiff Holifield's ADA claim was
dismissed, but noted while "Holifield does not have any other claims pending .... it is his intent to
seek to correct/add a title VII claim." (Doc. 29 at 13 at note 1). On November 1, 2022, Plaintiffs
filed a motion to amend, attaching a proposed second amended complaint naming Holifield as a
party plaintiff for the proposed non-ADA claims (including Title VII claims). (Doc. 30-1 at 5 at
¶25). Plaintiffs then filed a revised proposed second amended complaint naming Holifield as a
party plaintiff for the proposed non-ADA claims (including Title VII claims). (Doc. 44-1 at 5 at
4 Holifield's status appears to have been overlooked by Plaintiffs.
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¶25). Plaintiffs voluntarily withdrew Doc. 44-1 per the rulings in the other Austal cases (CV 1:22-
328, CV 1:22-329), leaving the operative complaint in this case as the First Amended Complaint,
which names Holifield as a party plaintiff for all proposed claims.
Given the prior rulings, Plaintiff Holifield cannot allege ADA claims against Austal. Since
the Court's rulings supra, however, Plaintiffs have repeatedly named him as a plaintiff for their
proposed non-ADA claims. Additionally, a review of the First Amended Complaint indicates that
Plaintiff Holifield was apparently included in the Title VII and the negligence/gross negligence
counts as both are asserted by the "Plaintiffs" and so it is unclear why he was believed to "not have
any other claims pending." Regardless, to the extent Plaintiffs seek leave to add Plaintiff Holifield
is a party plaintiff, that portion of the motion is GRANTED as to non-ADA claims.
IV. 	Plaintiffs' Proposed Federal Claims Counts IV-IX
Plaintiffs' proposed new claims consist of: three (3) counts alleged by all Plaintiffs for Title
VII religious discrimination via disparate treatment (Count IV), hostile work environment (Count
V), and harassment (Count VI); and three (3) counts alleged by two (2) Plaintiffs Jordan/Ross
against Austal for ADA disability discrimination via disparate treatment (Count VII), hostile work
environment (Count VIII), and harassment (Count IX). (Doc. 94-1).
Austal opposes the amendment and argues that due to the allegations in Plaintiffs' EEOC
Charges, these proposed claims could not have reasonably been expected to grow out of the
Charges, and thus, Plaintiffs failed to exhaust their administrative remedies as to these claims:
... Plaintiffs have not administratively exhausted any claim other than their respective
claims for Title VII religious failure to accommodate (all Plaintiffs) and ADA failure to
accommodate (Plaintiffs Jordan and Ross) .... Plaintiffs failed to raise any such allegations
of disparate treatment, disability discrimination, or hostile work environment based on
disability within their respective EEOC Charges. ... Plaintiffs Jordan and Ross failed to
raise any such allegations of disparate treatment, disability discrimination, or hostile work
environment based on disability within their respective EEOC Charges. They did not
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include any hint, mention, or suggestion at all of any concern, issue, or complaint they had
about religious-based discrimination (all Plaintiffs) or disability-based discrimination
(Plaintiffs Jordan and Ross) as to 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." ... the only actions by Austal constituting alleged discrimination identified in
Plaintiffs’ Charges were the alleged failure to accommodate and Plaintiffs’ terminations as
a result of the alleged failure to accommodate ...
***
... Plaintiffs’ Charges read solely and explicitly ... that he had been denied a religious
accommodation/exemption in violation of Title VII as well as a disability accommodation
as to Plaintiffs Jordan and Ross in violation of the ADA-and were subsequently terminated
as a result .... 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 (all
Plaintiffs) or disability-based (Plaintiffs Jordan and Ross) 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 that, regarding Plaintiffs Jordan and Ross
who claim to be disabled individuals, that they were being treated differently from non-
disabled individuals with respect to the terms and conditions of their employment or of any
type of religious-based harassment (all Plaintiffs) or disability-based (Plaintiffs Jordan and
Ross) harassment ...
... 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 (all Plaintiffs) or disability (Plaintiffs Jordan and
Ross) ... The Title VII and ADA religious disparate treatment and harassment claims that
Plaintiffs now include ... do not, in any way, “grow out of” the failure to accommodate
claim in their respective Charges ...
(Doc. 95 at 11-14 (emphasis and footnote omitted)).
In response, Plaintiffs argue that their mere identification of Austal's Covid-19 vaccination
mandate -- "the principal vehicle/subject of discrimination" -- in each of their EEOC Charges
covers any/all types of discrimination and defines the "scope of the complaint." 	Per Plaintiffs,
because the discrimination "occurred under the 'umbrella' of ... [the] Mandate[,]" their proposed
"Title VII and ADA claims are expressly derived from .... conduct to create, implement, enact,
administer, and enforce" the mandate. (Id. at 9 (emphasis omitted)). Specifically:
... the mandate ... was the principal vehicle/subject of discrimination identified by every
Plaintiff in their Charges and served as the primary basis for discrimination ... identification
-
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of [the] ... Mandate ... constitutes the "permissible scope of [Plaintiffs’] complaint" since
the discrete acts of discrimination were taken to create, implement, administer, and enforce
the mandate, these actions had occurred simultaneously, and were the exact conduct that
served as the basis for Plaintiffs’ existing claims under Title VII and ADA for Failure to
Accommodate ...
... Plaintiffs’ additional federal claims “reasonably grow” from their Charges because the
Charges sufficiently identify and describe the ... Mandate as the principal vehicle of
discrimination that led to their termination based upon their non-compliance with the
mandate demonstrates Plaintiffs’ explicit intention to allow the EEOC to investigate into
the allegations concerning the mandate, its effects, and the “natural considerations”
involved in the EEOC administrative investigatory process that allowed the agency to
reasonably investigate ... the mandate is the “umbrella” subject matter mechanism that
exists over Plaintiffs’ otherwise descriptions of alleged discrimination that occurred as a
result of the mandate, occurred simultaneously during the mandate, and were derived from
the exact conduct that served as the basis for Plaintiffs’ Failure to Accommodate claims ...
Plaintiffs’ description of discrete facts such as Defendant’s failure to engage in the
interactive process, universal denial of religious exemption requests, and failure to provide
reasonable accommodations are all smaller and specific acts of discrimination that occurred
under Defendant’s larger dispositive policy that serves as the “umbrella” by which those
discrete acts fit within ... because the Court and Defendant had previously recognized the
validity of Plaintiffs’ Failure to Accommodate ... claims that were expressly derived from
this exact conduct referenced by Plaintiffs in their Charges, then it is logical to determine
Plaintiffs’ additional Title VII and ADA claims for discrimination “grow out” of Plaintiffs’
Charges and/or are virtually indistinguishable these claims all directly stem from
“umbrella” principal vehicle of discrimination .... [the] ... Mandate ... Plaintiffs’ ....
description of discrete actions by Defendant that were taken to create, implement,
administer, and enforce the mandate were to provide further context of the allegations to
the EEOC, served as the predicate of the same transactions, occurrences, and conduct that
would not have occurred but-for the mandate, and whose actions all occurred during the
same time period and dates that were indicated within each Plaintiffs’ Charges ...
... Plaintiffs’ sufficient description of alleged discrimination identified the principal vehicle
of discrimination, the ... 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 ... 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. ... Plaintiffs’ additional claims of religious discrimination
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“reasonably grow out of” .... Charges 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 practice....
... the judicial scope of Plaintiffs’ Second Amended Complaint ... pertain to the actions of
religious and disability discrimination concerning Austal USA’s creation, implementation,
administration, and enforcement of its ... Mandate ... [and so] "can reasonably be expected
to grow out of" Plaintiffs' Charges and/or are virtually indistinguishable with the existing
claims...
***
Plaintiffs did not specifically articulate each discrete act of alleged discrimination against
them in their respective Charges, 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 ...
(Id. at 9-13, 17).
Before filing suit under the ADA or Title VII, a plaintiff must exhaust his administrative
remedies by filing a Charge with the EEOC "within" 180 days "after the alleged unlawful
employment practice occurred[,]" and by filing a civil action within 90 days after receipt of a right
to sue letter from the EEOC. 42 U.S.C. §§ 2000e-5(e)(1), 2000e-5(f)(1), and 12117(a). 5 See e.g.,
5 Austal asserts that "[t]he EEOC issued right-to-sue notices to all Plaintiffs between mid-April 2022 and
late June 2022[]" and "no later than June 2022." (Doc. 95 at 4, 16). From this, Austal contends that Plaintiffs
had 90 days from the date they received their June 2022 EEOC right to sue notices (Doc. 94-2) -- late
September 2022 -- within which to file additional Title VII and ADA claims in this Court but failed to do
so until November 1, 2022. (Doc. 95). There is nothing before the Court confirming the date upon which
many of the Plaintiffs received their EEOC right to sue notices. For example, the EEOC right to sue notices
for Plaintiffs Jordan/Ross submitted by Austal are undated and unsigned. Likewise, the EEOC right to sue
notices for Plaintiffs Dennis Abbott, Kenneth Allison, John Boyd, Joseph Taylor Brown, Kristin Carroll,
Tracy Chapman, Pheap Chum, Christopher Colvin, Michael Crenshaw, Melissa Daidone, Sharon Davis,
Timothy Daw, Jason Dyson, Christopher Hayes, Joseph Jalbert, Christopher Jordan, Nathan Kantola,
Zackary Kesterson, Christopher Lancaster, Keith Lovett, Necos Martin, Patrick Martin, Jimmy Middleton,
Devan Tyler Mims, Charles Myers, Robert Olszandski, Shane Robinson, Anhkiet Rodriguez, Antonio Ross,
Charles Roy, Joseph Schwall, Bradley Schwartz, Alexis Scott, Justin Stewart, Anthony Swann, Joe D.
Thompson, Christopher Thornton, David Tolbert, Mark Vardaman, Martin Van den Bosch, Steven
Woodward, Elisha Wright, and Timothy Yace, are undated and unsigned. (Doc. 95-3). The dates for the
remaining right to sue notices submitted by Austal are as follows: Steven Bailey 4/19/22, Douglas Beck
6/15/22, Clarence Davis 4/18/22, Samantha Davis 4/18/22, Russell Dyson 4/18/22, Jessie Ellison 4/19/22,
Joseph Hackett 4/18/22, Ryan King 4/19/22, James Lindsey 4/19/22, Glenn Lund 4/18/22. The Court could
not locate the notice for Plaintiffs Kristopher Holifield. And while Austal also submitted copies of two (2)
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Miller v. Georgia, 223 Fed. Appx. 842, 844 (11th Cir. 2007) (the ADA, 42 U.S.C. 12101, et seq,
has adopted the same enforcement mechanisms as Title VII); Fry v. Muscogee Cty. Sch. Dist., 150
Fed. Appx. 980, 981 (11th Cir. 2005) (“[b]efore filing suit under the ADA, a plaintiff must exhaust
her administrative remedies by filing a charge with the EEOC[]”). While a plaintiff is not permitted
to allege new acts of discrimination in a complaint that were not raised in his EEOC Charge, the
April 19, 2022 postmarked envelopes addressed to Austal from the EEOC (Doc. 95-3 at 34, 71), there is no
indication of their significance.
Further, the Court notes that while Plaintiffs alleged only a singular Title VII count and a singular
ADA count (both for failure to accommodate) in the operative July 2022 First Amended Complaint and
state "[t]his case challenges Austal's decision to implement a COVID-19 vaccine mandate without also
granting reasonable accommodations as required under ... the ADA...[,]" other employment discrimination
terms were also stated therein. These include allegations that Plaintiffs were:
subjected to a discriminatory, hostile, and offensive work environment because of their
religious beliefs ... [which] .. included but was not limited to:
#1- Disparaging and unfavorable treatment by employees, supervisors, managers,
and agents of Austal ... as compared to similarly situated employees who received
one of the three experimental vaccines.
#2- Being terminated for not receiving one of the three experimental vaccines, all
of which have proven to have a vast array of serious side effects and have caused
an increasing number of deaths.
***
This is an action ...[to] ... redress unlawful discrimination, harassment, and retaliation
against 	the 	Plaintiffs 	based 	on 	those 	who 	requested 	religious 	and/or 	medical
accommodations from Defendant's .... mandate .... Defendant has engaged in an unfounded
pattern and practice of religious and disability discrimination in employment opportunities
and to secure the protection for and to redress the deprivation of such rights secured by
Title VII ... [ADA] ... which provide for relief against discrimination and harassment in
employment on the basis of religion and medical status and retaliation related thereto ...
Defendant has subjected them to a hostile work environment and wrongful termination
based on their sincerely held religious beliefs and/or medical capabilities...
(Doc. 4). Even so, none of these terms or allegations were present in the Plaintiffs' EEOC Charges.
Additionally, in September 2022 Plaintiffs apparently endeavored to build on those references by
submitting a motion and proposed second amended complaint to also assert distinct Title VII and ADA
claims for disparate treatment, hostile work environment, and harassment. (Doc. 23-1). And while the
motion was denied, Plaintiffs continued to move to add these new federal claims, but those motions were
denied, resulting in the current case posture. As such, Austal's contention that Plaintiffs waited until
November 2022 to first assert (or try to assert) these additional Title VII and ADA claims is incorrect.
Regardless, the point of reference remains each Plaintiffs' EEOC Charge -- that the scope of the judicial
complaint in federal court is limited to the scope of an EEOC investigation prompted by the allegations
of an EEOC Charge (i.e., what reasonably grew out of those Charge allegations).
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scope of an EEOC Charge "should not be 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.” Gregory v. Georgia Dept. of
Human Resources, 355 F.3d 1277, 1280 (11th Cir. 2004) (“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[]”). "[T]he 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). “The rational[e] for this limitation is that Congress
wanted the EEOC to have an opportunity to investigate and attempt conciliation of all claims
before litigation was brought." Sanchez v. Stand. Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970).6
Generally, a Title VII failure to accommodate claim is distinct from other types of Title
VII discrimination, an ADA failure to accommodate claim is distinct from other types of ADA
discrimination, and Title VII claims are distinct from ADA claims. See, e.g., Thomas v. Nicholson,
263 Fed. Appx. 814, 815 n.1 (11th Cir. 2008) (per curiam) (affirming the district court's dismissal
of plaintiff's racial harassment claims for failure to exhaust administrative remedies because the
EEOC charge alleged only racially discriminatory termination); Ramon v. AT&T Broadband, 195
Fed. Appx. 860, 866 (11th Cir. 2006) (per curiam) (“[Plaintiff] has pointed to no allegation in her
EEOC charge that reasonably points to the kind of pervasive and oppressive conditions that would
allow us to conclude that she intended to have the EEOC investigate the workplace for a hostile
work environment[]”); Green v. Elixir Indus., Inc., 152 Fed. Appx. 838, 841 (11th Cir. 2005) (per
curiam) (concluding that plaintiff's claim for a racial hostile work environment was procedurally
6 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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deficient because the EEOC charge alleged only discriminatory termination and “[n]othing in
[Plaintiff's] EEOC charge related to incidents of harassment, nor did anything mention the dates
on which they occurred[]”); Palmer v. McDonald, 2019 WL 1490667, *9-10 (M.D. Fla. Apr. 4,
2019) (plaintiff failed to exhaust his administrative remedies regarding his ADA failure to
accommodate claims as they were not included in this EEOC charge for ADA discriminatory
treatment -- "Green v. Nat'l Steel Corp., Midwest Div., 197 F.3d 894, 898 (7th Cir. 1999) ('[A]
failure to accommodate claim ... is separate and distinct from a claim of discriminatory treatment
under the ADA ... the two types of claims are analyzed differently under the law ... they are not
like or reasonably related to one another, and one cannot expect a failure to accommodate claim
to develop from an investigation into a claim that an employee was terminated because of a
disability.' (citations omitted))[]"); Hunt v. Marshalls of MA, Inc., 2018 WL 11483366, *5 (N.D.
Ga. Nov. 19, 2018) ("Defendant argues that Plaintiff's claims for race discrimination, harassment,
and failure to promote are not 'like or related to' the disability claims alleged in Plaintiff's EEOC
Charge. The Court agrees .... The only claims that Plaintiff has arguably administratively
exhausted in his EEOC Charge are the claims expressly mentioned in that charge ... 	disability
discrimination, failure to accommodate, and retaliation, in violation of the ADA ... To the extent
that Plaintiff now seeks to assert a race discrimination claim under Title VII, and claims for
harassment and failure to promote, those claims are not 'like or related to' the claims under the
ADA alleged in Plaintiff's EEOC Charge, nor could they reasonably be expected to arise during
the course of the EEOC's investigation[]"); Hampton v. Penske Truck Leasing, 2018 WL 7082543,
*3 (N.D. Ga. Jul. 11, 2018) Report & Recommendation adopted by 2018 WL 7107541 (N.D. Ga.
Jul. 31, 2018) (finding that a plaintiff failed to exhaust administrative remedies regarding his Title
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VII claims, dismissing same as frivolous, because "plaintiff's EEOC charge shows that he alleged
discrimination, failure to accommodate, and termination based only on his cerebral palsy ... the
charge makes no mention of any characteristic protected under Title VII (i.e., race, color, religion,
sex, or national origin). one would not reasonably expect an EEOC investigation of potential
violations of Title VII to grow out of the charge's allegations of disability-based discrimination[]");
Edmonds v. Southwire Co., 58 F.Supp.3d 1347, 1354-1355 (N.D. Ga. Nov. 10, 2014) ("[e]ven
assuming that hostile work environment claims are cognizable under the ADA, see Gilliard v. Ga.
Dept. of Corr., 500 Fed. Appx. 860, 870 (11th Cir.2012) (assuming without deciding such claims
are cognizable), Edmonds did not report any harassment or evidence of a hostile work environment
when she filed her complaint with the EEOC and thus failed to exhaust her administrative remedies
as to these claims ... Edmonds's EEOC charge alleges that she was denied accommodation and
fired ... It makes no mention of a hostile workplace or any related harassment ... No investigation
into Edmonds's questionnaire and EEOC charge would have reasonably revealed additional and
unrelated 'harassment' claims[]"); Nelson v. PMTD Restaurants, LLC, 2013 WL 4045086, *8
(M.D. Ala. Aug. 8, 2013) ("an employer's failure to accommodate is a separate act of
discrimination under the ADA that gives rise to a separate cause of action under the ADA, with a
different burden of proof and different theory of liability. See 42 U.S.C. § 12112(b)(5)(A); Terrell
v. USAir, 132 F.3d 621, 624 (11th Cir.1998) (setting forth the distinct burden of proof that applies
to ADA failure-to-accommodate claims)[]"); Scott v. Kindred Hosp. Ltd. P'p, 2006 WL 2523093,
*4 (N.D. Ga. Aug. 28, 2006) (plaintiff's ADA disability discrimination and retaliation claims based
on the elimination of her position and termination "do not 'amplify clarify, or more clearly focus
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the allegations in the EEOC charge [of failure to accommodate], but instead constitute new
allegations of discrimination[]'").7
7 See also e.g., Waggoner v. Carlex Glass Am., LLC, 682 Fed. Appx. 412, 417 (6th Cir. 2017) (employee's
retaliation and hostile work environment claims, not in his EEOC charge, were not reasonably expected to
grow out of his ADA discrimination or failure to accommodate claim); Hamar v. Ashland, Inc., 211 Fed.
Appx. 309, 310 (5th Cir. 2006) (footnotes omitted) (“[t]he ... claims, failure to accommodate[] and disparate
treatment,[] represent distinct categories of disability discrimination under the ADA. The EEOC could not
reasonably have been expected, when presented with ... disparate treatment .... to investigate the entirely
distinct failure-to-accommodate claim[]"); Novitsky v. American Consulting Engineers, L.L.C., 196 F.3d
699, 701-702 (7th Cir. 1999) (a failure to accommodate claim based on plaintiff's religion was not
reasonably related to the EEOC charge discussing discrimination on bases of age and religion, even where
plaintiff described in intake form an incident that supported her failure to accommodate theory); Davis v.
ArcelorMittal USA, LLC, 2022 WL 1125781 (N.D. Ind. Apr. 15, 2022) ("plaintiff's original charge did not
contain any allegations of harassment or hostile work environment ... [thus] ... Plaintiff's hostile work
environment claim did not relate to, or grow out of, her original claims of failure to accommodate or
disparate treatment[]"); Weatherly v. Ford Motor Co., 2019 WL 13297892, *3 (W.D. Mo. Mar. 28, 2019)
(internal citations omitted) ("Courts have held that '[r]easonable accommodation claims are different from
disparate treatment discrimination claims and require different liability analyses .... courts in other circuits
and districts have concluded that a charge that only mentions discrimination does not exhaust a claim for a
reasonable accommodation.” ... in his .... charge, plaintiff only alleged a failure to reasonably accommodate
his disability ... simply stating that you missed work due to a disability is different that alleging that your
employer fired you because of your disability. These are two separate types of claims and the Court finds
that plaintiff did not administratively exhaust his disability discrimination claims[]"); Waggoner v. Carlex
Glass Am., LLC, 2016 WL 3632808, *6 (M.D. Tenn. Jul. 7, 2016) ("the retaliation and hostile work
environment claims are not 'reasonably expected' to grow out of the ADA discrimination or failure to
accommodate claim ... [t]he only facts ... alleged ... are that he has a disability, requested a reasonable
accommodation, and the company discharged him[]"); Horton v. LKQ/Keystone Auto. Indus., 2016 WL
806154, *4 (W.D. Mich. Feb. 11, 2016) ("the EEOC's right-to-sue letter was limited to EEOC charge ... in
which plaintiff claimed that he was denied an accommodation and demoted in violation of the ADA. ....
[and] ... did not include factual allegations which would have prompted the EEOC to expand its
investigation to include claims of retaliation or harassment... defendant's motion to dismiss ... should be
granted as to ... a retaliatory hostile work environment[]"); Oliver v. Titlemax, 149 F.Supp.3d 857, 865
(E.D. Tenn. 2016) ("considering plaintiff's discriminatory discharge claim under the ADA ... plaintiff's
charge does not allege that she was discharged ... nor does it state facts sufficient to prompt the EEOC to
investigate .... whether she had been discriminatorily fired ... so the Court is unable to find that a
discriminatory discharge claim reasonably grows out of the charged claims [for ADA failure to
accommodate]" and "plaintiff's uncharged hostile work environment claim does not reasonably grow out
of plaintiff's charge for failing to accommodate a disability .... as the conduct alleged in plaintiff's charge
does not amount to harassment based on her disability ... the facts included in plaintiff's amended charge
would not have prompted the EEOC to investigate a hostile work environment claim under the ADA[]");
Huang v. Seattle Public Library, 2016 WL 3405486, *5 (W.D. Wash. Jun. 21, 2016) ("Plaintiff's ADA
failure to accommodate and hostile work environment harassment claims are not like or reasonably related
to either of Plaintiff's employment discrimination charges. ... In this charge, Plaintiff solely alleges ... she
was discriminated against on the bases of age, disability, nationality, and race when SPL did not promote
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As detailed supra, Austal opposes Plaintiffs' proposed new Title VII and ADA claims and
argues that due to the narrow allegations in their EEOC Charges, these claims could not have
reasonably been expected to grow out of the Charges -- i.e., Plaintiffs failed to first exhaust their
administrative remedies as to these claims.
First, concerning Plaintiffs' Jordan and Ross' proposed ADA claims for disparate
treatment (Count VII), hostile work environment (Count VIII), and harassment (Count IX),
the Court begins with a review of their EEOC Charges. On November 8, 2021, Plaintiff Jordan
filed an EEOC Charge alleging Title VII religious discrimination for failure to accommodate,
stating he notified Austal of his sincerely held religious beliefs (Christian) regarding the
vaccination, the need for a religious accommodation from Austal's Covid-19 vaccination
requirement, his request was denied on October 22, 2021, and was informed he would be
terminated on November 1, 2021. (Doc. 94-2 at 57). On January 4, 2022, Plaintiff Jordan filed an
Amended EEOC Charge alleging only ADA failure to accommodate as follows:
I am an individual with a medical condition which prohibits me from taking the COVID
19 vaccination. I was informed by the Respondent that all employees would be required to
be fully vaccinated. I submitted documentation from medical personnel which noted my
her ...At no point in that charge does Plaintiff claim that SPL failed to accommodate her disability, nor does
Plaintiff give any indication that she was subjected to a hostile work environment[]"); Stone v. Premier
Ortho. and Sports Med., PLC, 2015 WL 4487778, *11 (M.D. Tenn. Jul. 23, 2015) ("[d]isability
discrimination claims and claims alleging failure to accommodate are analytically distinct. ‘[T]hey are not
like or reasonably related to one another, and one cannot expect a failure to accommodate claim to develop
from an investigation into a claim that an employee was terminated because of a disability[;]'" Dunavant v.
Frito Lay, 2013 WL 816673, *9 (M.D. Tenn. Mar. 5, 2013) ("a disparate treatment claim based upon an
alleged disability does not encompass a failure to accommodate claim[]"); Wamack v. Windsor Park Manor,
836 F.Supp.2d 793, 798 (N.D. Ill. 2011) ("A disparate treatment claim is based on the premise that an
employer took an adverse employment action, such as termination, based on the employee's actual or
perceived disability ... a reasonable accommodation claim, on the other hand, looks at an employer's failure
to make accommodations to the known physical or mental limitations of an otherwise qualified
individual[]"); Mattias v. Ready Workers Mgmt. Corp., 08–CV–7245, 2009 U.S. Dist. LEXIS 85677, *4 n.
2 (S.D.N.Y. Sept. 22, 2009) (concluding where allegations in plaintiff's EEOC charge related only to failure
to accommodate and termination, his additional claims for failure to promote, unequal terms and conditions
of employment, and retaliation were dismissed as unexhausted);
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inability to get vaccinated. During my employment, I requested an exemption as a
reasonable accommodation to Respondents [sic] Covid-19 vaccination mandate and my
request was granted. The Respondent requests that I wear a mask and get tested. I am
unable to wear a mask or get tested due to my medical condition. I am currently on a
medical leave of absence. I believe I have been discriminated against because of my
disability, in violation of Title I of the ... [ADA] ...
(Doc. 95-1). Subsequently, Plaintiff Jordan received a right to sue notice from the EEOC which is
undated and unsigned. (Doc. 95-3 at 80).
On January 5, 2022, Plaintiff Ross filed an EEOC Charge alleging Title VII religious
discrimination via failure to accommodate, stating he notified Austal of his sincerely held religious
beliefs (Christian) regarding vaccination, the need for a religious accommodation from the
vaccination requirement, his request was denied, and was terminated on October 27, 2021. (Doc.
94-2 at 92). That same day Plaintiff Ross filed an Amended EEOC Charge also alleging ADA
failure to accommodate: "I am individual with a disability. I believe the Respondent failed to
provide me with an exemption to the vaccination mandate in violation of Title I of the Americans
with Disabilities Act Amendments Act of 2008." 	(Doc. 95-2). Subsequently, Plaintiff Ross
received a right to sue notice from the EEOC which is undated and unsigned. (Doc. 95-3 at 139).
Second, regarding the 52 other Plaintiffs' Title VII claims for religious discrimination
via disparate treatment (Count IV), hostile work environment (Count V), and harassment
(Count VI), the Court begins with a review of their EEOC Charges. (Doc. 94-2). With slight
variations (dates of accommodation/exemption requests, type of religion/religious beliefs), 52
Plaintiffs filed substantially similar EEOC Charges reporting a failure to accommodate based on
religion, stating they were notified by Austal that all employees would be required to get fully
vaccinated per the company's Covid-19 vaccination mandate, they hold religious beliefs that
conflict with this vaccination requirement, they notified Austal of their religious beliefs, their
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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. (Doc. 94-2). The EEOC Charges for these 52 Plaintiffs are
limited to Title VII allegations for failure to accommodate (religion).
As a whole, none of the Plaintiffs' EEOC Charges make any reference to either Title VII
and/or ADA hostile work environment, harassment, or disparate treatment based on their religious
beliefs and/or disabilities/medical conditions. The EEOC Charges instead, are limited to ADA
failure to accommodate (medical condition/disability) and/or Title VII failure to accommodate
(religion) for Plaintiffs Jordan and Ross; and Title VII failure to accommodate (religion) for the
52 other Plaintiffs. None of the EEOC Charges reference religious and/or disability-based
discrimination as to wages/compensation, promotions, job assignments, discipline, discharge
(inactive status and/or termination), and/or other terms, conditions, and privileges of their
employment); disparate treatment (that they were being treated differently from non-disabled
individuals with respect to the terms and conditions of their employment); harassment by anyone
at Austal; any facts or allegations regarding a hostile work environment at Austal; etc. As a result,
the Court cannot conclude that any of the Plaintiffs' EEOC Charges would prompt the EEOC to
investigate claims other than a failure to accommodate under Title VII (religion) and/or the ADA
(disability/medical condition), as indicated supra. Thus, Plaintiffs' proposed new Title VII and/or
ADA claims do not reasonably grow out of their EEOC Charges.
Perplexingly, Plaintiffs argue that their mere identification of Austal's Covid 19 Mandate
in their EEOC Charges -- standing alone -- is "sufficient" to encompass any type of discrimination
claim in this case. Plaintiffs' rationale is as follows: 1) "an employee asserting discrimination in
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an EEOC charge of discrimination does not need to .... list each and every discrete act complained
of[;]" 2) it was their "explicit intention" -- in identifying only the mandate -- "to allow the EEOC
to 	investigate 	into 	the 	allegations 	concerning 	the 	mandate, 	its 	effects, 	and 	the 	'natural
considerations' involved in the EEOC administrative investigatory process that allowed the agency
to reasonably investigate[;]"3) Plaintiffs' (now) amended description of "discrete acts" under the
mandate "umbrella" -- via a proposed second amended complaint -- "are all smaller and specific
acts of discrimination" "to provide further context ... to the EEOC[]"and so the claims are "virtually
indistinguishable[;]" and 4) "[t]hese microcosmic discrete instances of discrimination would
naturally become apparent to the EEOC through its investigation of the primary mechanisms of
discrimination [the mandate] .... referenced in each Plaintiffs’ Charges ... As a result of Plaintiffs’
sufficient depiction of such primary mechanisms of discrimination [the mandate], 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." Id. The Court cannot agree.
First, Plaintiffs' contentions appear to confuse "discrete acts" within certain types of
employment discrimination with distinct types of employment discrimination/claims as well as
fail to address employment discrimination case law which provides significant guidance on the
necessary link between the judicial scope of a complaint and the allegations of an EEOC Charge
(see supra). Second, Plaintiffs' rationale reflects unsupported assumptions about what types of
discrimination the EEOC would have been notified via the mere identification of Austal's Covid-
19 mandate in an EEOC Charge, and what types of discrimination would have "naturally become
apparent to the EEOC" when the only reported discrimination was failure to accommodate (Title
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VII religion and/or ADA disability/medical condition). Third, Plaintiffs assume that the EEOC
would somehow discern (without notice, information, or identification) the broad scope of
Plaintiffs' 	"explicit 	intention" 	to 	assert 	other 	types 	of 	discrimination. 	Overall, 	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 each type, to then be alleged
in a federal complaint as "reasonably growing" from such Charges, lacks merit. Stated succinctly,
abundant employment discrimination case law repeatedly and consistently concludes otherwise.
Upon consideration, it is ORDERED that Plaintiffs' motion to amend the complaint (Doc.
94) to allege on behalf of all Plaintiffs Title VII religious discrimination via disparate treatment
(Count IV), hostile work environment (Count V), and harassment (Count VI), and on behalf of
Plaintiffs Jordan and Ross ADA disability discrimination via disparate treatment (Count VII),
hostile work environment (Count VIII), and harassment (Count IX), is DENIED.
V. 	Plaintiffs' Proposed State Law Claim: Count XI (Invasion of Privacy)
Plaintiffs move to amend the complaint to add an Alabama state law claim against Austal
for invasion of privacy (intrusion upon seclusion or solitude) (Count XI):
... confidential medical information ... vaccination status, medical complications, and
general medical information, were repeatedly disclosed publicly through a multitude of
mediums ... permitted, endorsed, and/or permitted by Defendant.
Austal USA’s actions infringed upon the intrusion upon seclusion theory based upon their
wrongful intrusion into Plaintiffs’ private activities ... caused severe outrage, mental
suffering, shame, and/or humiliation to the ... Plaintiffs and would otherwise cause such
effects to be felt by a person of ordinary sensibilities.
... 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 ... medical information regarding
their medical capabilities, medical preferences, and medical status violates the ordinary
decencies recognized in our society.
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The actions [by] Austal ... Alabama state law.
As a result of the actions of Austal ... 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. 94-1 at 59 at ¶¶280-284). In support, Plaintiffs' proposed Second Amended Complaint
alleges as follows in connection with this claim:
This lawsuit is grounded in Defendant’s ... intrusive conduct ...
***
... Plaintiffs and other unvaccinated employees were told daily to get the vaccine or they
were going to be fired and that they should just resign instead. Plaintiffs and other
unvaccinated employees 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 ... disregard their medical health at the expense of
their career and livelihood at Defendant’s business.
***
...Austal ... Leaders and employees would frequently belittle Plaintiffs’ 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.
Weekly throughout September and October 2021, Plaintiff Daw was forced to ask his
fellow 	employees 	about 	their 	confidential 	medical 	information, 	record 	who 	was
unvaccinated, and provide a list of people to Austal USA who asserted religious beliefs
and/or disabilities in opposition to the ... Mandate.
***
In Fall 2021, Plaintiff Christopher Jordan was terminated for noncompliance of the ....
Mandate after he received a medical exemption due Defendant’s intrusive actions of
obtaining his complete private medical record with no articulated basis for having such.
Plaintiff Beck and others had Austal USA Leaders to individually question employees
about their vaccination status while at work in front of others, over the phone while not at
work, and within group settings weeks before the General Employee Vaccination
Announcement on October 1, 2021, and after until Plaintiffs termination on October 27,
2021. Plaintiff Douglas Beck contends he and others were asked to track COVID-19
vaccination percentages of employees prior to August 3, 2021, and started harassing
Plaintiff Beck and other Plaintiffs months before the vaccination was mandated.
***
Even though not a single Plaintiff indicated, explicitly or implicitly, their vaccination
status, vaccination preference, or any other confidential medical information prior to the
announcement of Defendant’s ... Mandate, Plaintiffs’ respective supervisors and managers
would elicit statements informing all unvaccinated individuals to receive the vaccination
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or be subject to termination. These supervisors and managers would specifically identify
Plaintiffs within their respective workgroup, singled these individuals out as unvaccinated
persons ... and subsequently communicated each Plaintiffs’ respective confidential medical
information to Austal USA employees and others without consent.
***
In Fall 2021, 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.... 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 or disability status, and reprimanded Plaintiffs for trivial matters to punish
them for their ... medical capabilities.
... 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 intentionally target,
harass, and/or frequently admonish Plaintiffs and other like-situated persons ... in a public
display to embarrass or shame them. Defendant’s actions defamed Plaintiffs’ reputation in
the community ....
... Plaintiffs ... were identified through these backchannels of data collection and
dissemination without their knowledge or consent ... [and] ... were demonized. Plaintiffs
were specifically targeted in meetings, publicly shamed for their ... confidential medical
information among their workgroup and across the entire company, be forcibly subject to
meetings for only unvaccinated persons ....
From September 2021 until termination, 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 .... 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.
***
... Defendant’s ... 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 ... COVID-19 policies and procedures ... :
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...(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;
.... (viii) Plaintiffs were isolated and ostracized from the majority of their peers to
be subject to this unreasonable testing, social distancing, and masking requirement
....; (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 ... Mandate, ... Masking Policy, ... Social Distancing Policy, and ... 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 .... Leaders to further identify Plaintiffs and other unvaccinated
employees easily despite Plaintiffs never revealing their confidential medical information
to any person ...
***
All Plaintiffs contend they ... were subjected to Defendant’s pervasive intrusions and
harassing actions to ensure compliance ...
(Doc. 94-1 at 2, 14, 33-35, 40-44 at ¶¶3, 74-75, 135, 142, 144-145, 160-164, 167-169, 173). In
their motion, Plaintiffs add that Austal "[d]isseminated private medical information of its
employees to other employees without consent and posted information of employees on social
media websites to the general public." (Doc. 94 at 8).
Historically, there have been four (4) categories of invasion of privacy in Alabama: 1) the
intrusion upon the plaintiff's physical solitude or seclusion; 2) publicity which violates the ordinary
decencies; 3) putting the plaintiff in a false, but not necessarily defamatory, position in the public
eye; and 4) the appropriation of some element of the plaintiff's personality for a commercial use.
Bosarge v. Mobile Area Water & Sewer Serv., 2020 WL 2820201, *30 (S.D. Ala. May 29, 2020);
Butler v. Town of Argo, 871 So.2d 1, 12 (Ala. 2003); Ex parte Birmingham News, Inc., 778 So.2d
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814, 818 (Ala. 2000); Johnston v. Fuller, 706 So.2d 700, 701 (Ala. 1997). Recently, however the
district court in Rivers v. Noom, Inc., 2023 WL 359501, *4-5 (N.D. Ala. Jan. 23, 2023) cited the
Alabama Right of Publicity Act (ARPA) and concluded that there are now three (3) categories of
common law and one (1) statutory basis for invasion of privacy; namely, Ala. Act 2015-188,
(Section 6-5-772(a) (Liability for use or indicia of identity without consent)).
Plaintiffs assert a proposed invasion of privacy claim for intrusion upon solitude or
seclusion under Alabama common law. The Alabama Supreme Court, in Hogin v. Cottingham,
533 So.2d 525, 531-532 (Ala. 1988)8 (footnote omitted, emphasis added), explained:
... “wrongful intrusion” ... has been defined as the “intentional interference with
another's interest in solitude or seclusion, either as to his person or to his private
affairs or concerns.”[] W. Prosser & W. Keeton, The Law of Torts, p. 851 (5th ed.
1984). “[T]here must be something in the nature of prying or intrusion” and “the
intrusion must be something which would be offensive or objectionable to a
reasonable person. The thing into which there is intrusion or prying must be, and
be entitled to be, private.” Id. at 855. Two primary factors are considered in
“determining whether or not an intrusion which effects access to private
information is actionable. The first is the means used. The second is the
defendant's purpose for obtaining the information.” Id. at 856.
Before deciding whether there was an offensive or objectionable prying or
intrusion, we must decide whether the thing ... into which there was an
intrusion or prying must be, or is entitled to be, private.
***
...We find nothing in the purpose of the inquiry ... that would support an action for
invasion of privacy...
The 	only 	question, 	then, 	is 	whether 	the 	means 	used 	were 	offensive 	or
objectionable. .... Was the method of inquiry .... objectionable? ... Was the
method of inquiry ... objectionable?
Neither of the actions described .... taken alone, is unreasonable or objectionable
enough to rise to the level of an invasion of privacy. However, when taken
together ... we agree that a factual issue did exist as to whether the means used
8 Finding a wrongful intrusion into a plaintiff's privacy when there was an abrupt, offensive, and
objectionable prying into information entitled to remain private.
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were improper, offensive, and unreasonable. ... summary judgment was improper
on the invasion of privacy claim.
As summarized in Majdalani v. Auburn Univ., 2022 WL 4596349, *14 (M.D. Ala. Sept. 7, 2022):
To prove this type of invasion of privacy, Plaintiff must show that Defendants
“intentionally intrude[d], physically or otherwise, upon [his] solitude or seclusion
... or his private affairs or concerns” in a manner that “would be highly offensive to
a reasonable person.” Johnston, 706 So. 2d at 702 (quoting Restatement (Second)
of Torts § 652B (Am. L. Inst. 1977)). The Supreme Court of Alabama has
acknowledged examples of intrusion upon seclusion including “wiretapping or
eavesdropping” and “opening private mail or examining a private bank account.”
Id. (quoting Restatement (Second) of Torts § 652B cmt. b (Am. L. Inst. 1977)). The
Restatement, which the Alabama Supreme Court has relied upon, notes further
examples, including “searching [a man's] safe or his wallet ... or compelling him by
a forged court order to permit an inspection of his personal documents.”
Restatement (Second) of Torts § 652B cmt. b (Am. L. Inst. 1977). The Alabama
Supreme Court has added, “[I]f the means of gathering the information are
excessively objectionable and improper, a wrongful intrusion may occur.” Id.
(citing Hogin v. Cottingham, 533 So. 2d 525 (Ala. 1988)).
See also e.g., March v. Best Buy Stores, LP, 111 F.Supp.3d 1236 (N.D. Ala. 2015) (same).9
9 As explained in THE RESTATEMENT (SECOND) OF TORTS, § 652B cmt. a-d (Mar. 2023 Update):
a. The form of invasion of privacy .... consists solely of an intentional interference with his
interest in solitude or seclusion, either as to his person or as to his private affairs or
concerns, of a kind that would be highly offensive to a reasonable man.
b. The invasion may be .... be by the use of the defendant's senses, with or without
mechanical aids, to oversee or overhear the plaintiff's private affairs ... It may be by some
other form of investigation or examination into his private concerns, as by opening his
private and personal mail, searching his safe or his wallet, examining his private bank
account, or compelling him by a forged court order to permit an inspection of his personal
documents. The intrusion itself makes the defendant subject to liability, even though there
is no publication or other use of any kind of the photograph or information outlined.
c. ... defendant is subject to liability ... only when he has intruded into a private place, or ..
otherwise invaded a private seclusion ... plaintiff has thrown about his person or affairs...
d. There is likewise no liability unless the interference with the plaintiff's seclusion is a
substantial one of a kind that would be highly offensive to the ordinary reasonable man, as
the result of conduct to which the reasonable man would strongly object....
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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.'" Carter v. Innisfree Hotel, Inc., 661 So.2d 1174, 1178 (Ala. 1995) (citation
omitted). See also Rosen v. Montgomery Surgical Ctr., 825 So.2d 735, 737 (Ala. 2001) (same).
This claim "can arise out of remarks about private matters made to a third party." Sorrells v. Lake
Martin, Inc., 2011 WL 627049, *6 (M.D. Ala. Feb. 11, 2011) (citing Logan v. Sears, Roebuck &
Co., 466 So.2d 121, 123 (Ala.1985) and finding an employer's communication to management and
employees that the plaintiff had AIDS, which was inaccurate, supported an actionable invasion of
privacy wrongful intrusion claim which survived summary judgment). "[O]ne 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.
Phillips, 435 So.2d at 711." 	Kelley v. Worley, 29 F.Supp.2d 1304, 1311 (M.D. Ala. Dec. 14,
1998). "[T]o qualify as wrongful intrusion, information need not be acquired 'surreptitiously' or
'clandestinely' from the plaintiff, Phillips, 435 So.2d at 709–710 ..." Shows v. Morgan, 40
F.Supp.2d 1354, 1362-1363 (M.D. Ala. 1999). "To withstand a motion to dismiss, a plaintiff may
allege a ... '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. Phillips, 435 So.2d at 710–11, quoting Restatement § 652B cmt. a." Hope v. BSI Fin., Inc.,
2012 WL 5379177, *5 (N.D. Ala. Oct. 26, 2012) (finding the claim facially plausible).
In the proposed Second Amended Complaint, Plaintiffs' invasion of privacy allegations
include that Austal wrongfully subjected them to intrusive medical testing; gained unauthorized,
-- 	--- 	-----------------------
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unlawful, and unwanted access to their private confidential medical data/records/information;
obtained, collected, disseminated, and failed to safeguard their private confidential medical
data/records/information; monitored their private communications; eavesdropped on private
conversations with other employees and when they used their personal telephones, computers, etc.;
and surveilled them. Plaintiffs also allege that from that, Austal "compiled" this information into
reports to discuss and disseminate to other employees at the Austal facility as a means to isolate,
ostracize, coerce, and compel the Plaintiffs and to implement a "vaccinated logo-sticker" program
(vaccinated employees wore a vaccinated sticker on their hard hat thereby identifying the
unvaccinated Plaintiffs who lacked a sticker (involuntarily communicating confidential medical
information)). 	Additionally, 	Plaintiffs 	Daw, 	Jordan, 	and 	Beck 	assert 	specific 	allegations
surrounding their respective invasion of privacy claims: 1) Daw was forced to ask employees about
their medical information, record who was unvaccinated, and provide a list of employees with
disabilities in opposition to vaccination; 2) Jordan was terminated by Austal for noncompliance
with the vaccination policy even though he received a medical exemption; and 3) Beck was
individually questioned by Austal leaders about his vaccination status, at work in front of others,
over the phone while not at work, and within group settings as well as asked by leadership to track
employee vaccination percentages. Moreover, the allegations are asserted on behalf of all
Plaintiffs, and identify or describe sufficient facts/information "to raise a reasonable expectation
that discovery will reveal evidence" regarding the allegations (acts by management, being targeted
in meetings, non-voluntary isolation from others on their work crew) and provide examples (logo
sticker involuntarily revealing their unvaccinated status). Further, "[a]ll Plaintiffs contend they ...
were subjected to Defendant’s pervasive intrusions and harassing actions to ensure compliance"
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with the COVID-19 vaccination mandate. Finally, all Plaintiffs allege outrage, mental suffering,
shame, and humiliation, and that Austal intruded into their private medical affairs.
Upon consideration, and because the factual allegations in the proposed amended
complaint are taken as true and viewed in the light most favorable to Plaintiffs at this juncture, the
Court is satisfied that Plaintiffs have alleged sufficient information to support the facial plausibility
of their invasion of privacy (intrusion upon seclusion/solitude) claim. See, e.g., Hughes v. Wal-
Mart Stores, East LP, 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 ... the Court
concludes that Plaintiff states a claim for invasion of privacy based upon intrusion, or a claim for
intrusion upon seclusion, ...plead sufficiently to survive Defendants' Motions to Dismiss[;]" Drew
v. Quest Diagnostics, 992 F.Supp.2d 1177, 1188 (N.D. Ala. 2014) (footnote omitted) ("[t]o 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[]' ... they 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[]").10 Thus, it is ORDERED that
10 Cf. Franks v. Indian Rivers Mental Health Ctr., 2012 WL 4736444 (N.D. Ala. Sept. 30, 2012)
(discussing a plaintiff's invasion of privacy claim based on her allegation that her private medical
information was accessed unlawfully, but granting summary judgment on her claim because she "ha[d] no
evidence" that anyone other than the authorized doctor had "viewed her medical records" and her
"suspicions are not sufficient"); Baldwin v. Cross, 2005 WL 8155900 (N.D. Ala. Sept. 13, 2005) (internal
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Plaintiffs' motion to amend, as to the Alabama invasion of privacy claim for intrusion upon
seclusion or solitude, is GRANTED.
V. 	Conclusion
It is ORDERED that Plaintiffs' motion for leave to file a Second Amended Complaint
(Doc. 94) is GRANTED in part and DENIED in part as set forth supra. It is further ORDERED
that Plaintiffs shall file, on or before June 16, 2023, a new Second Amended Complaint which
citations omitted) (In Alabama, "[t]here must be something in the nature of prying or intrusion and the
intrusion must be something which would be offensive or objectionable to a reasonable person. The thing
into which there is an intrusion or prying must be, and be entitled to be, private[,]'" and it is "the wrongful
intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame, or
humiliation to a person of ordinary sensibilities[]” -- finding "the incidents in this case are not sufficiently
extreme or intrusive to constitute an actionable claim for invasion of privacy ...There is no allegation that
Head pried or intruded into plaintiff's private affairs ....").
See also e.g., Darcangelo v. Verizon Comms., Inc., 292 F.3d 181, 188-189 (4th Cir. 2002)
(emphasis in original) (in concluding that an invasion of privacy claim based on improperly obtained
confidential medical information survived a motion to dismiss, "we read Darcangelo's complaint as alleging
that CORE solicited her private medical information for the sole purpose of helping Verizon establish that
she posed a sufficient threat to her coworkers to warrant her discharge[]" and "Darcangelo alleges that
CORE's solicitation of her medical information from third parties was not justified by any purpose that
would result in legitimate use of the information[]"); Hooper v. United States, 2013 WL 5530603, *5 (D.
Or. Sept. 25, 2013) ("a plaintiff's medical records are considered private, and the unauthorized access or
disclosure of the records is an intrusion on seclusion[;]" Hamilton v. Black Hills Corp., 2007 WL 9724267,
*2 (E.D. Tex. Sept. 26, 2007) (finding --when evaluating a common law intrusion into seclusion claim
similar to that in Alabama -- plaintiffs satisfied their Rule 12 motion to dismiss burden of pleading a cause
of action for invasion of privacy for solitude or seclusion because the defendant "provided the ... medical
information of the plaintiffs to Sunoco and Sunoco used that information to discriminate against plaintiffs
on the basis of their ... medical conditions[]"); French v. United States ex rel. Dep't of Human Health and
Human Serv., 55 F.Supp.2d 379, 382–384 (W.D.N.C.1999) (plaintiff stated an intrusion on seclusion claim
because "Plaintiff had every expectation of privacy in her medical records and wrongfully obtaining and
using those records would be highly offensive to a reasonable person[]" -- "Plaintiff's allegation that Lossiah
intentionally obtained and disclosed her confidential medical records without her permission to insure she
would not be offered employment constitutes extreme and outrageous conduct. The conduct was a severe
intrusion into her medical record[;]"Anderson v. Farr Assocs., Inc., 1997 WL 896407, *4 (M.D.N.C. Dec.
12, 1997) (plaintiff stated an intrusion claim by alleging his employer “forced him to participate in group
sessions and evaluations which resulted in his disclosure of deeply personal information”); Toomer v.
Garrett, 574 S.E.2d 76, 90 (N.C. Ct. App. 2002) (concluding -- when considering a common law intrusion
into seclusion claim similar to that in Alabama -- that unauthorized examination of the contents and
information contained in an employee personnel file such as medical history, testing data, etc.--"especially
where it includes sensitive information such as medical diagnoses .... like the unauthorized opening and
perusal of one's mail, would be highly offensive to a reasonable person[]").
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complies with the instructions herein and is in strict keeping with the rulings in this Order.
Thereafter, the Second Amended Complaint shall be REFERRED to the U.S. Magistrate Judge
in light of Austal's pending Motion to Dismiss for which briefing is now complete.
DONE and ORDERED this the 7th day of June 2023.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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