Thursday, October 30, 2008

M.D. Tenn. Declines to Dismiss Title VII after 12(b)(6) Challenge

Per Smith v. Davidson Transit Organization, Slip Copy, 2008 WL 4722652, at * 10 (M.D. Tenn. Oct. 23, 2008):

In count three, plaintiff alleges that DTO perpetuated a racially hostile work environment and engaged in racial/gender discrimination in violation of Title VII. . . . Here, the plaintiff's allegations, taken as true, do show that, as an African-American, she was subject to repeated, unwelcome, negative comments about African-Americans, such that it is more than speculative that an offensive and hostile work environment was created. . . .

Further, the plaintiff has also alleged that she and other members of her protected class were treated less favorably in terms of their working conditions while performing rider counts than similarly situated employees who were not in the plaintiff's protected class (African-American and/or female). The plaintiff supports these allegations by referencing that she was forced to work outdoors, without access to a car, without breaks or meals, while other similarly situated employees not in her protected class were allowed privileges such as access to a car and the right to work indoors. . . . With these allegations and underlying factual support, the plaintiff has established that her Title VII claim should not be dismissed.

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