DocketNumber: Civil Action File No. 1:14-CV-207-TWT
Citation Numbers: 56 F. Supp. 3d 1356
Judges: Thrash, Vineyard
Filed Date: 10/20/2014
Status: Precedential
Modified Date: 7/25/2022
ORDER
This is an employment discrimination action. It is before the Court on the Report and Recommendation [Doc. 11] of the Magistrate Judge recommending that the Defendant’s Motion to Dismiss [Doc. 7] be denied. No objections to the Report and Recommendation were filed. The Court approves and adopts the Report and Recommendation as the judgment of the Court. The Defendant’s Motion to Dismiss [Doc. 7] is DENIED. The Defen
ORDER FOR SERVICE OF NON-FINAL REPORT, RECOMMENDATION, AND ORDER
Attached is the Non-Final Report, Recommendation, and Order of the United States Magistrate Judge made in this action in accordance with 28 U.S.C. § 686(b)(1), Federal Rule of Civil Procedure 72(b), and this Court’s Local Rule 72.1. Let the same be filed and a copy, together with á copy of this Order, be served upon counsel for the parties.
Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within fourteen (14) days of the receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the district court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the district court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir.1983) (per curiam).
The Clerk is directed to submit the Report and Recommendation with objections, if any, to the district court after expiration of the above time period.
IT IS SO ORDERED, this 1st day of August, 2014.
MAGISTRATE JUDGE’S ORDER AND NON-FINAL REPORT AND RECOMMENDATION
Plaintiff Brian Locascio (“Locas-cio”), brings this ^ action against defendant BBDO Atlanta, Inc. (“BBDO”), alleging retaliation in violation of 42 U.S.C. § 1981 (“ § 1981”). [Doc. 5].
I. FACTUAL AND PROCEDURAL BACKGROUND
Locascio began working for BBDO, a national advertising agency, in September of 2006. [Doc. 5 at 2-B].
Locascio alleges that he alerted BBDO to Hutchinson’s “diversity requirements,” which were already well-known to BBDO, and that he “expressly objected to Hutchinson’s insistence that Locascio make hiring and contracting decisions based on race,” but that BBDO “took no action to prevent Hutchinson’s discriminatory conduct.” [Id.]. Locascio also complained to BBDO’s Human Resources Officer, Debbie Lindner (“Lindner”), that he believed it was unlawful to hire contractors on the basis of race in accordance with Hutchinson’s directives, [id. at 4], but BBDO “rejected [his] concerns on the stated belief that making hiring decisions based on race was lawful to achieve or maintain ‘diversity,’ ” [Id. at 4-5].
Locascio alleges several specific instances during the summer of 2013 in which he complained to BBDO about hiring contractors on the basis of race. See [Id. at 5-8]. In particular, Locascio describes an incident when he and other members of BBDO’s creative team selected a “trusted freelance contractor” by the name of Matthew Crouch (“Crouch”), to work on a GLC commercial assignment in July of 2013. [Id. at 5]. Locascio alleges that when BBDO sought Hutchinson’s approval to hire Crouch, who was white, Hutchinson “insisted” that they hire William Robert Ray (“Ray”), who was black. [Id.].
Later that month, Hutchinson “again insisted that BBDO hire Ray” to work on another GLC project that had been assigned to Locascio’s creative team. [Id.]. Hutchinson allegedly told BBDO that “he viewed the hiring of Ray as a ‘diversity issue.’ ” [Id.]. Locascio and the other members of BBDO’s creative team then received an e-mail from BBDO employee Danielle Claiborne (“Claiborne”), stating that Hutchinson had told Claiborne that ‘ “we need to get [ ] Ray in here to do the freelance,” as “[Hutchinson] feels it’s an issue of diversity.” ’ [Id.]. Locascio responded to the e-mail, asking for confirmation and noting that “ ‘this is about to become a huge issue.’ ” [Id.]. In reply, Claiborne “confirmed Hutchinson’s requirements,” and added that “ ‘[Hutchinson had] specifically mentioned AA [African-American] designers in terms of getting diversity [Id. (second and third alterations in original) ].
Locascio once again approached Lindner in the Human Resources office, and complained about the “use of race in hiring,” with specific reference to Hutchinson’s “directive to hire Ray.” [Id. at 7], Locascio ultimately “refused to hire Ray, because he believed that doing so, based solely on Ray’s race, constituted unlawful racial discrimination.” [Id.]. Locascio alleges that after Hutchinson learned of his refusal to hire Ray, Hutchinson stopped returning Locascio’s calls and e-mails and otherwise ceased communicating with Locascio about BBDO’s ongoing advertising projects with GLC. [Id]. As Hutchinson’s “lack of communication negatively impacted] [Locas-cio’s] ability to perform his job duties,” Locascio “again informed Lindner that he objected to hiring contractors based on their race and that he specifically had objected to hiring Ray.” [Id.]. Locascio also informed Lindner that “his refusal to hire contractors for GLC projects based on race was the reason that Hutchinson was no longer communicating with him,” and that “BBDO’s tolerance of [Hutchinson’s] discriminating practice was impacting Lo-cascio’s ability to do his job.” [Id. at 7-8].
Following this complaint, BBDO removed Locascio from the GLC account and reassigned him to “ ‘new business’ ” in August of 2013. [Id. at 8]. Locascio alleges that “BBDO knew at the time it transferred [him] away from the GLC account that there was insufficient ‘new business’ for him to work on,” and that, on September 30, 2013 — within one month of his reassignment — BBDO terminated his employment on the purported basis that there was “no work for him.” [Id.]. Locascio asserts that BBDO’s actual purpose in removing him from the GLC account was to “terminates employment and avoid having to complain to GLC about Hutchinson and his unlawful practices,” [id.], and that BBDO’s termination of Locascio was in fact “calculated to send a message to other [BBDO] employees that in order to remain employed, [ ] they would have to participate in unlawful and discriminatory employment practices,” [id. at 10].
Based on these events, Locascio filed a complaint against BBDO on January 23, 2014. [Doc. 1]. After BBDO moved to dismiss the complaint, see [Doc. 3], Locas-cio filed a response in opposition to the motion to dismiss, [Doc. 6], as well as a first amended complaint, [Doc. 5]. On March 31, 2014, BBDO moved to dismiss the first amended complaint for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
II. STANDARD ON MOTION TO DISMISS
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of an action when the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In considering BBDO’s motion to dismiss, the Court must accept Locas-cio’s allegations as true and construe the complaint in Locascio’s favor. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir.1993). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide- the grounds of his entitlement] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (second alteration in original) (citations and internal marks omitted).
Furthermore, “Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ ” Broner v. Wash. Mut. Bank, FA, 258 Fed.Appx. 254, 256 (11th Cir.2007) (per curiam) (unpublished) (quoting Fed.R.Civ.P. 8(a)(2)). “Factual allegations must be enough to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted), and the complaint must contain “enough facts to state a claim to relief that is plausible on its face,” id. at 570, 127 S.Ct. 1955. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Thus, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
In sum, while “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era,” it “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions,” and “only a complaint that states a plausible claim for relief survives a motion to dismiss.” kL at 678-79 (citation omitted); see also id. at 679, 127 S.Ct. 1955 (“[WJhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ”).
III. DISCUSSION
BBDO moves to dismiss the first amended complaint, [Doc. 7], arguing that Locas-cio has failed to state a plausible retaliation claim under § 1981 because he has failed to adequately allege that he engaged in statutorily protected activity, see [Doc. 7-1]. Locascio counters that the amended complaint “contains detailed factual allegations supporting his opposition” to BBDO’s
A. Retaliation under § 1981
Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts[
In this case, BBDO does not dispute that Loeascio suffered a materially adverse
1. Protected Activity
In order to state a claim for retaliation under § 1981, “a plaintiff must allege a defendant retaliated against him because the plaintiff engaged in statutorily protected activity.” Jimenez v. Wellstar Health Sys., 596 F.3d 1304, 1311 (11th Cir.2010) (citation omitted). “An employee engages in protected activity if he opposes an employment practice based on a good faith, reasonable belief that the practice violates Title VII or Section 1981.” Canty v. Fry’s Elecs., Inc., No. l:09-cv-3508-WSD, 2012 WL 1038611, at *5 (N.D.Ga. Mar. 27, 2012) (citation omitted) (citing Bryant v. U.S. Steel Corp., 428 Fed.Appx. 895, 898 (11th Cir.2011) (per curiam) (unpublished)). “The ‘opposition’ must be made know[n] to the employer in the form of a complaint or some overt rejection of what the employee believes to be an illegally discriminatory practice or decision.” Chandler v. Infinity Ins. Grp., No. 2:12-cv-2870-TMP, 2014 WL 2547826, at *12 (N.D.Ala. June 4, 2014); see also Reynolds v. Golden Corral Corp., 106 F.Supp.2d 1243, 1253-54 (M.D.Ala.1999).
Thus, an employee may engage in protected activity by “voicing complaints of [racial] discrimination” to his employer, Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 715 n. 2 (11th Cir.2002), or by “refusing to follow a supervisor’s order to [engage in a discriminatory practice],” Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 277, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009) (citation omitted); see also Reynolds v. Fed. Express Corp., No. 09-2692-STA-cgc, 2012 WL 1107834, at *24 (W.D.Tenn. Mar. 31, 2012) (footnote omitted) (noting that typical forms of protected opposition “include’ complaining about allegedly unlawful practices[ and] refusing to obey an order because the worker thinks it is unlawful under Title VII”). There is no requirement that the discriminatory practice opposed by the plaintiff be directed at the plaintiff himself, see Tucker v. Talladega City Schs., 171 Fed.Appx. 289, 295 (11th Cir.2006) (per curiam) (unpublished) (holding that “the claimed retaliation [need not] be directly due to the race of the plaintiff’); Kendall v. Cobb Cnty., Ga., 14 F.Supp.2d 1342, 1346 (N.D.Ga.1998), aff'd by 189 F.3d 486 (11th Cir.1999) (citations omitted), but “[t]he opposition must be directed at an unlawful employment practice of an employer, not an act of discrimination by a private individual,” Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir.1997) (quoting Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir.1978)).
In addition, “[t]o establish ‘statutorily protected activity [,]’ a plaintiff claiming retaliation for opposing an unlawful employment practice must demonstrate that [ ]he believed, in good faith, that the challenged practice was unlawful and that this subjective belief was objectively reasonable in view of the facts, as measured against existing substantive law.” Sanford v. SCA, Inc., Civil Action No. 3:13cv153-MHT, 2014 WL 1329277, at *4 (M.D.Ala. Mar. 28, 2014), adopted at *1 (second alteration in original) (citing Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir.2010); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir.1999)). Howev
The Court finds that the facts alleged in the amended complaint, when taken as true and construed in Locascio’s favor, are sufficient to establish that Lo-cascio’s opposition to BBDO’s allegedly race-based discrimination constituted protected activity under § 1981. First, Lo-cascio clearly manifested his opposition to the practice of hiring contractors based on race by complaining to BBDO’s Human Resources department about the practice on several occasions, see [Doc. 5 at 4, 7-8], and by refusing to accede to Hutchinson’s directive that he hire a particular freelance designer on the basis of race, [id. at 7 (alleging that he informed Lindner of “his refusal to hire contractors for GLC projects based on race”) ] — even after BBDO had already directed Locascio to “acquiesce” to Hutchinson’s previous demand that Locascio hire that same designer on the basis of race, [id. at 5-6], and even though BBDO had already advised Locas-cio that it approved of such racially motivated hiring practices as a legitimate means to advance diversity in the workplace, [id. at 4-5]. See E.E.O.C. v. HBE Carp., 135 F.3d 543, 554 (8th Cir.1998) (citing Moyo v. Gomez, 32 F.3d 1382, 1385 (9th Cir.1994)) (holding that opposition “can include refusal to implement a discriminatory policy”); Husick v. Allegheny Cnty., Civil Action No. 07-1175, 2010 WL 1903748, at *14 (W.D.Pa. May 10, 2010) (citing Crawford, 555 U.S. at 276, 129 S.Ct. 846) (“The Supreme Court has indicated that an employee may ‘oppose’ an unlawful act of discrimination simply by refusing to assent to it.”).
Locascio has also alleged facts showing that his subjective belief that BBDO was engaged in unlawful employment practices was objectively reasonable in light of existing substantive law. Section 1981 prohibits “discrimination] on the basis of race in the making and enforcing of contracts,” Freeman v. Koch Foods of Ala., 777 F.Supp.2d 1264, 1280 (M.D.Ala.2011) (citing 42 U.S.C. § 1981(a)), and the allegations of the amended complaint plausibly establish the following facts for purposes of the pending motion to dismiss: (1) Hutchinson “routinely insisted” that BBDO hire contractors for the GLC account on the basis of race, [Doc. 5 at 4 (alleging that Hutchinson “required ... black or African-American persons [to be] hired for specific jobs,” and that he occasionally gave Locascio a “detailed breakdown of the number of black contractors to use for GLC advertising projects”) ]; (2) BBDO was aware of Hutchinson’s racially discriminatory hiring^requirements, [id. at 4, 7 (alleging that “Hutchinson’s diversity requirements were well-known to BBDO,” and that Locascio complained to BBDO about the requirements and the “use of race in hiring” on several occasions) ]; and (3) BBDO expressly approved of Hutchinson’s requirements and actively facilitated them by directing Locascio to comply with Hutchinson’s demands that he hire contractors based on race, [id. at 4-6 (alleging that BBDO “took no action to prevent Hutchinson’s discriminatory conduct”; told Locascio that it recognized hiring based on race as a lawful means to foster diversity; and “directed Locascio to acquiesce” to
Nevertheless, BBDO raises several arguments purporting to show that Locascio did not have an objectively reasonable belief that BBDO was engaged in an unlawful employment practice. See [Doc. 7-1 at 6-13]. First, BBDO argues that Locascio could not have reasonably believed that the racially discriminatory hiring practice which he opposed was attributable to his employer, since “[he] only complain[ed] to BBDO about an alleged act of racial discrimination imposed by [Hutchinson,] a private individual,] and not by BBDO.” [Id. at 8 (citation omitted) ]. Locascio responds that BBDO’s argument overlooks the “numerous allegations in the [a] mended complaint alleging that [BBDO] adopted and enforced racially discriminatory hiring practices on the [GLC] account,” and that BBDO not only “refused to investigate [Hutchinson’s discriminatory hiring] practice or otherwise attempt to prohibit it,” but “both acquiesced [in] and facilitated the ... practice[,]” in “concerted action” with Hutchinson and GLC. [Doc. 9 at 11-12].
Although Locascio appears to allege that the discriminatory hiring requirements for the GLC account originated with Hutchinson, it is clear from the face of the amended complaint that Locas-cio was not merely opposing Hutchinson’s “insistence” that BBDO hire contractors on the basis of race, but also, and in particular, BBDO’s ratification and adoption of that practice. See [Doc. 5 at 4, 6-8]. Indeed, taking Locascio’s well-pled factual allegations as true, it appears that BBDO not only failed to take any remedial action when confronted with Hutchinson’s directives that it hire contractors based on race, but actively facilitated the practice, even to the point of requiring Locascio to implement it. That the discriminatory purpose of the practice may have originated with Hutchinson or the GLC is immaterial. An employer may no more engage in overt racial discrimination in order to accommodate the requests of a third party or to maintain a lucrative client relationship than to perpetuate its own discriminatory animus. Nor may an employer absolve itself from liability for its own act of racial discrimination by shifting the blame to an outside party who instigated the practice that the employer implemented. See Smith v. CH2M Hill, Inc., 521 Fed. Appx. 773, 775 (11th Cir.2013) (per curiam) (unpublished) (Title VII race discrimination claim held plausible where plaintiff alleged that third party, motivated by discriminatory animus, “demanded” that defendant-employers terminate plaintiffs employment, and that employers “complied and terminated [plaintiff] with full knowledge of the discriminatory motive”); Brooks v. D.C. 9 Painters Union, No. 10 Civ. 7800(JPO), 2013 WL 3328044, at *4 n. 2 (S.D.N.Y. July 2, 2013) (noting that discriminatory conduct by someone other than employer may be attributable to the employer if the employer “actively facilitated such discrimination or in some other manner participated in it”).
Moreover, the focus of Locascio’s com-' plaints to his employer was the “use of race in hiring,” [Doc. 5 at 7], and it is undisputed that BBDO, not Hutchinson, had the ultimate authority to hiré contractors to work on BBDO’s advertising projects. Since BBDO was directly responsible for the hiring of contractors to work on
BBDO next argues that Locascio could not have reasonably believed that his employer was engaged in unlawful discrimination because “no one was discriminated against” with respect to any of BBDO’s hiring decisions. [Doc. 7-1 at 11]. In particular, BBDO points to the incident in which Hutchinson insisted that BBDO hire Ray as a freelance designer, arguing that, since BBDO also hired Crouch to perform the same work, “there [was] no underlying victim of discrimination,” and therefore Locascio could not have had a reasonable belief that any discrimination existed. [Id. at 12]. However, since Locascio has adequately alleged that BBDO knowingly directed him to hire Ray, “not because of [Ray’s] abilities or qualifications,” but precisely “because of his race,” see [Doc. 5 at 5-6], it cannot be said that “no reasonable person possibly could have construed [BBDO’s actions as giving rise to] a case of discrimination,” Taylor, 4 F.Supp.3d at 1380 (citation and internal marks omitted); Walton v. Dougherty Cnty. Sch. Sys., 59 F.Supp.2d 1297, 1304-05 (M.D.Ga.1997) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) (“Title VII and § 1981 impose[ ] liability upon a covered employer for deciding to hire an applicant based upon ... race”).
BBDO’s argument that there was no “victim” of the alleged discrimination in this case is also rendered dubious by Lo-cascio’s allegation that Hutchinson specifically required certain contractor positions for the GLC account to be given to black or African-American individuals, see [Doc. 5 at 4]; considering that there were necessarily a limited number of such positions available, Locascio could have reasonably believed that the advance reservation of a particular position for black or African-American individuals only, to the exclusion of all others, resulted in discrimination against the class of non-black individuals—
Finally, BBDO argues that Locas-cio’s belief that it was unlawful for BBDO to hire contractors for the GLC account on the basis of race was not objectively reasonable in light of existing substantive law because the GLC is statutorily mandated to encourage participation by minority businesses, pursuant to O.C.G.A. § 50-27-14. [Doc. 7-1 at 12-13]. However, nothing in that statute mandates, or even permits, the GLC to make hiring decisions on the basis of race. To the contrary, the statute provides that the GLC should “encourage participation by minority businesses,” and that it is therefore “authorized and directed to undertake training programs and other educational activities to enable such minority businesses to compete for contracts on an equal basis.” O.C.G.A. § 50-27-14. The statute thus envisions that the GLC will work to give minority businesses equal footing in bidding for employment contracts on the basis of their qualifications and training, not on the basis of race.
In any event, “[u]nder the Supremacy Clause, any state law that conflicts with federal law is preempted.”
In sum, Locascio has alleged facts plausibly suggesting that BBDO was responsible for racially discriminatory employment practices by, among other things, knowingly directing Locascio to hire contractors on the basis of race pursuant to Hutchinson’s instructions. Because § 1981 prohibits that conduct, Locascio’s good-faith belief that BBDO was engaged in an unlawful employment practice was “objectively reasonable in view of the facts, as measured against existing substantive law.” Sanford, 2014 WL 1329277, at *4 (citation omitted). And even if the conduct opposed by Locascio was not actually unlawful,' it was “close enough to support an objectively reasonable belief that it [was],” Clover, 176 F.3d at 1351, which is all that is required to establish protected opposition. See Taylor v. Cardiovascular Specialists, P.C., 1:11-cv-04521-TCB-RGV, at [Doc. 62 at 62] (N.D.Ga. Dec. 11, 2013), adopted by Taylor, 4 F.Supp.3d at 1382-83 (citation and internal marks omitted) (“[A] plaintiffs opposition is protected provided it was based upon a good faith belief that a Title VII [or § 1981] violation occurred, even if no violation actually took place”); Melton, 705 F.Supp.2d at 1332 (citations omitted) (“[I]n order to engage in protected activity, the underlying act complained of need not, in fact, violate § 1981; but rather, the employee merely needs to have a reasonable belief that the employer has engaged in unlawful employment practices.”). Accordingly, the “factual assertions [of the amended complaint] satisfy the pleading standard required to establish that [Locascio] engaged in statutorily protected activity,” Danner, 2013 WL 754956, at *4, and Locascio has thus adequately alleged the first prima facie element to support a claim of retaliation under § 1981.
2. Materially Adverse Action & Causal Connection
As stated previously, it is undisputed that Locascio has satisfied the remaining elements to state a viable retaliation claim. Locascio’s termination from employment clearly constitutes a materially adverse action, see Burlington N., 548 U.S. 53, 57, 126 S.Ct. 2405 (2006) (stating that termination is an adverse employment action), and the time frame presented in the amended complaint likewise establishes sufficient temporal proximity to show a causal connection between his termination and protected activity. See [Doc.
IV. CONCLUSION
For the foregoing reasons, BBDO’s motion to dismiss the original complaint, [Doe. 3], is DENIED as MOOT, and it is RECOMMENDED that BBDO’s motion to dismiss Locascio’s amended complaint, [Doc. 7], be DENIED.
IT IS SO ORDERED and RECOMMENDED, this 1st day of August, 2014.
. The listed document and page numbers in citations to the record refer to the document and page numbers shown on the Adobe file reader linked to the Court’s electronic filing database, CM/ECF.
. BBDO also filed a motion to dismiss Locas-cio’s original complaint, [Doc. 3], but that motion has been rendered moot by Locascio's filing of an amended complaint, [Doc. 5]. Under Rule 15 of the Federal Rules of Civil Procedure, a party may amend its pleading once as a matter of course within 21 days after service of a motion under Rule 12(b). Fed.R.Civ.P. 15(a)(1)(B). An amended pleading "supersedes the former pleading” such that " 'the original pleading is abandoned by the amendment, and is no longer a part of the pleader’s averments against his adversary.' ” Dresdner Bank AG v. M/V Olympia Voyager, 463 F.3d 1210, 1215 (11th Cir.2006) (footnote omitted) (citation omitted). See also Fritz v. Standard Sec. Life Ins. Co., 676 F.2d 1356, 1358 (11th Cir.1982) (citations omitted) ("Under the Federal Rules, an amended complaint supersedes the original complaint.”). Locas-cio’s amended complaint, [Doc. 5], supersedes the original complaint, [Doc. 1], because it was filed as a matter of course within the requisite 21-day period, and the original complaint is no longer the operative pleading before the Court. See Robinson v. Wild Wing Cafe, 1:1 1-cv-01579-SCJ, at [Doc. 42 at 8-10 (citations omitted)] (N.D.Ga. Dec. 19, 2011); see also Bradley v. Dekalb Cnty., Ga., Civil Action File No. L10-CV-0218-TWT-GGB, 2010 WL 4639240, at *2 (N.D.Ga. May 17, 2010), adopted by 2010 WL 4638887, at *1 (N.D.Ga. Nov. 4, 2010) (“Defendants’ first motion to dismiss has been rendered moot by the filing of Plaintiff’s Amended Complaint.”); Cordell v. Pac. Indem., No. CIV A. 4:05CV167-RLV, 2006 WL 1935644, at *2-4 (N.D.Ga. July 11, 2006) (dismissing as moot
. The factual background is taken from the pleadings and does not constitute findings of fact by the Court.
. According to Locascio, "[i]t was BBDO's practice to obtain approval from Hutchinson of all contractors before hiring them to work on the [GLC] project, including all freelance . designers.” [Doc. 5 at 5],
. “Make and enforce contracts” encompasses "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b).
. BBDO argues that Locascio did not engage in protected opposition because his objections to BBDO’s hiring practices were not based on any apparent racial discrimination, but on Locascio’s own purported “decision to exclude minorities!.]” See [Doc. 7-1 at 8-9 (emphasis, citation, and internal marks omitted) (asserting that "[Locascio] is essentially arguing that he has a statutory right not to have BBDO contract with a minority if he so chooses and that his unilateral decision to exclude minorities from his team should be considered protected activity.”) ]. BBDO’s argument finds no support in the allegations of the amended complaint, which must be accepted as true for purposes of the present motion to dismiss. Locascio plainly alleges that the reason he opposed BBDO’s practice of hiring contractors whom it knew that Hutchinson had selected based on race, was because he believed that the practice constituted unlawful racial discrimination, see [Doc. 5 at 4 (alleging that he “opposed the practice of hiring contractors based on race by, among
. BBDO relies heavily on Little, 103 F.3d 956, in support of its argument that Locascio did not engage in protected activity, [Doc. 7-1 at 6-8, 10; Doc. 10 at 2], but Little is easily distinguishable from this case. The plaintiff in Little alleged that his employer retaliated against him after he complained about a single racially derogatory remark made by a coworker eight months earlier. Little, 103 F.3d at 958. Because the remark was in no way attributable to an employer, the Eleventh Circuit easily concluded that the plaintiff's complaint about that remark did not constitute protected opposition to an unlawful employment practice. Id. at 959-60. Here, in contrast, the allegations of the amended complaint warrant a reasonable inference that the perceived discriminatory conduct was attributable to an employer, because Locascio has plausibly alleged that BBDO was directly responsible for the very conduct which he opposed — the hiring of contractors based on race. See [Doc. 5 at 4-7]. Cf. Silver, 586 F.2d at 141 & n. 4, 142 (footnotes omitted) (finding no protected activity where plaintiff's "opposition[ ] ... was expressed to a coworker about that co-worker’s own individual act of discrimination,” but where "[i]t [was] clear that [plaintiff] perceived it and responded to it as the act of an individual co-worker, not in any way the act of [an] employer,” and where neither "[the employer] or any of its supervisory personnel authorized [the coworker's] remark or approved of it, either before or after the incident, and [the co-worker] was reprimanded by [plaintiff's employer] on the day the incident occurred”).