MARTINEZ LOPEZ v. GFA ALABAMA INC (2025)

ORDER

This case is before the Court for consideration of the motion to stay discovery and local rule deadlines filed by Defendant GFA Alabama Inc. (“GFA”), [Doc. 26]; the motions to dismiss filed by GFA, [Doc. 36], and Defendant Glovis Georgia, LLC (“Glovis”), [Doc. 37]; and the motion to sever, transfer venue and stay filed by Glovis, [Doc. 38]. For the reasons set forth below, the Court DENIES AS MOOT GFA's motion to stay discovery and local rule deadlines, [Doc. 26], GRANTS Glovis's motion to stay, [Doc. 38], and DENIES WITHOUT PREJUDICE Glovis's motion to sever and transfer venue, [Doc. 38]. Glovis's motion to dismiss, [Doc. 37], and GFA's partial motion to dismiss, [Doc. 36], are GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

A. Procedural Background

Plaintiffs Jimmy Martinez-Lopez (“Martinez”) and Rosa Linda Soriano-Torres (“Soriano”) initiated this action bringing both individual and putative class action claims on June 20, 2024, against Defendants GFA and Glovis. [Doc. 1]. Plaintiffs filed a first amended complaint on October 18, 2024. [Doc. 25].

On October 18, 2024, GFA filed a motion to stay discovery and local rule deadlines, [Doc. 26], which Plaintiffs oppose, [Doc. 32]. On November 22, 2024, GFA filed a partial motion to dismiss the first amended complaint, [Doc. 36], and Glovis filed a motion to dismiss the first amended complaint, [Doc. 37]. Glovis also filed a motion to sever, transfer venue and stay. [Doc. 38]. Plaintiffs responded to the motions to dismiss and the motion to sever, [Docs. 44, 46, 47], and Defendants filed their respective replies, [Docs. 45, 48, 49]. In February of 2025, Plaintiffs filed a notice of supplemental authority, [Doc. 50], to which each Defendant filed a response, [Docs. 51, 52].

B. Factual Background

The Court draws the following factual allegations from the first amended complaint, [Doc. 25], which are assumed to be true for the purpose of this discussion, Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011).

1. The Parties

Plaintiffs and putative class members are citizens of Mexico, non-citizens of the United States and non-white Hispanic/Latino persons of Mexican ancestry and national origin (“Mexican/Latino”). [Doc. 25, p. 5]. Both Martinez and Soriano are residents of Mexico. Id. Plaintiffs came to the United States under the “Trade NAFTA” (“TN”) visa program on TN visas. Id. at 2, 5. GFA is a logistics company and labor recruiter with warehouse locations in Alabama and Georgia, including at 150 Greenwood Ind. Parkway in McDonough, Georgia (the “McDonough Warehouse”). Id. at 6. Public job listings show that GFA openly advertised that it was recruiting Mexican engineers to work with TN visas in Georgia automobile warehouses. Id. at 16. GFA provides material handling services in a warehouse owned or operated by Glovis at 101 Progress Boulevard in West Point, Georgia (the “West Point Warehouse”). Id. at 6. Glovis is a logistics company and is part of the Hyundai Kia Automotive Group headquartered in Seoul, South Korea. Id. Glovis operates the West Point Warehouse using GFA's material handling services. Id.

2. TN Visa Program

The government created the TN nonimmigrant classification, commonly known as the TN visa, to permit Mexican and Canadian professionals in certain occupations to temporarily enter the United States for employment within their profession. Id. at 12. “Engineer” and “Scientific Technician/Technologist” are among the categories of professionals permitted entry into the United States with TN visas. Id.

Glovis requested that GFA recruit Mexican workers to come to the United States and work for Glovis pursuant to the TN visa program. Id. at 15. Glovis and GFA knew the requirements of the TN visa program and that the TN visa was not available to workers performing unskilled manual labor. Id. Glovis's purpose in having GFA recruit Mexican TN visa workers was to secure high-skilled and hard-working individuals who would be relatively inexpensive to employ, as compared to other workers. Id. While employing the TN visa workers at the West Point Warehouse, Glovis knew that many workers quit because the jobs they were given were incompatible with the TN visa program and contrary to the promises made during recruitment. Id. at 16. Glovis—as confirmed by GFA supervisor Jorge Encinas—had actual knowledge of “all worker information” relating to Soriano and other TN visa workers. Id. Glovis knew that GFA was providing TN visa workers through fraudulent recruiting, and Glovis knew that the TN visa workers were not allowed to be placed in low-skilled manual labor positions. Id. Glovis continued to hire GFA and accept employees with this knowledge. Id.

3. Plaintiff Martinez

Plaintiff Martinez trained as an industrial engineer and worked as a professional engineer in Mexico for approximately six years prior to his employment with GFA. Id. at 18. In or around February 2022, Martinez saw an announcement for an engineering job in the United States with GFA, which stated that GFA would help engineers obtain visas to work as professional engineers in the United States. Id. A recruiter named Salvador Cortes Galan, who worked for a recruitment agency that contracted with GFA, called Martinez and interviewed him for a position. Id. at 19. On or around April 8, 2022, Mr. Cortes Galan sent Martinez an offer letter on GFA letterhead for “an employment with TN Visa opportunity.” Id. at 20. The offer letter specified that Martinez would have “full-time employment” at GFA as an “Industrial Engineer,” consistent with his qualifications as an engineer, and it was signed by Lacey Maxwell, an HR Generalist at GFA. Id. Martinez accepted the job offer and signed the offer letter the same day, in reliance on the misrepresentations in the offer letter. Id.

At the same time that GFA transmitted the job offer, it sent a support letter—on GFA letterhead addressed to “Acting Nonimmigrant Visa Section Chief, American Consulate General,” and signed by Maxwell—to Martinez. Id. The support letter specified that Martinez would work as an Industrial Engineer, that this role was “professional and specialized in nature and qualifies as Engineer under Appendix 1603.D.1. to Chapter 16 of the NAFTA” and provided a detailed job description. Id. at 20–21. At the time that Maxwell signed the offer letter and the support letter, she knew that the representations regarding the role and job duties set forth therein were false. Id. On May 24, 2022, in reliance on the misrepresentations in the offer letter and support letter, the United States issued a TN visa for Martinez to work for GFA as an Engineer. Id. at 22. In or around June 2022, Martinez moved from Mexico to the United States to begin work at the GFA McDonough Warehouse, and he worked for GFA from June 2022 through December 4, 2022. Id.

When Martinez arrived at the McDonough Warehouse in June 2022, GFA required him to do manual labor (using a packaging machine to package LG appliances in the warehouse) instead of the professional engineering work it had promised him in both the offer letter and the support letter. Id. Martinez objected that he had been hired as an engineer, but GFA refused to assign him engineering duties. Id. at 23. At no point did GFA assign Martinez the engineering work that it had promised him and which it had represented to the government that he would perform. Id. Martinez regularly worked more than 40 hours per work week, and he was not paid overtime at the rate of one-and-one-half times his regular rate of pay for the hours in excess of 40. Id. at 23, 26. Beginning in August 2022, GFA assigned Martinez to load trucks using a forklift, in addition to his packaging work, and in October 2022, GFA began to require Martinez and other workers with TN visas to work as security officers at the McDonough Warehouse. Id. at 23–24. When Martinez first started at GFA and was assigned to the night shift, Travis Fox, GFA's General Manager, promised that Martinez and other workers with TN visas would only have to work for two months on the night shift before they could start working exclusively on the day shift. Id. at 24. However, Martinez was assigned to work the night shift for the entirety of his time at GFA—he never worked the day shift. Id.

Over the course of Martinez's employment, GFA shifted the American and/or non-Mexican/Latino workers on the night shift to the day shift and replaced them with Mexican/Latino workers, until its workforce was fully segregated and only Mexican/Latino workers were required to work the night shift. Id. On the days when GFA required Martinez and his Mexican/Latino coworkers to clean the warehouse, it allowed the American and non-Latino workers to go home to rest because those workers said they were not willing to clean. Id. at 25. Martinez never saw American and non-Latino workers assigned the same cleaning duties. Id. GFA managers criticized Martinez and his Mexican/Latino coworkers for supposedly being idle or working too slowly, yet Martinez never heard GFA criticize American and non-Latino workers who performed at a slower pace than he did. Id. GFA managers Jeff Hammond and Travis Fox, who are both white, non-Latino and born in the United States, harassed and mocked Martinez and other Mexican/Latino workers about their ability to speak English. Id. Hammond prohibited Martinez and his Mexican/Latino coworkers from speaking Spanish at GFA, saying that they were in the United States and had to speak English, but he did not prohibit English-speaking employees from communicating with their coworkers in English. Id. at 25–26.

GFA also required Martinez and his TN visa holder colleagues to live in and pay $100 per week to GFA for employer-procured housing and for the limited use of employer-owned transportation. Id. at 26. Martinez and the other TN visa workers could not freely use the GFA-provided transportation, which only transported them between the McDonough Warehouse and the employer-provided housing or on occasional trips to buy groceries. Id. GFA also forbade Martinez and the other TN visa workers from having visitors at their apartments, in part to prevent them from communicating with anyone outside the company about their complaints. Id. GFA deducted the $100 per week from Martinez's pay, but these deductions were not identified or reflected in his paystubs. Id. at 26–27. GFA did not require American and non-Latino workers to live in employer-procured housing or to use employer-procured vehicles; nor did it charge them for these. Id. As a result of these off-the-books $100 weekly deductions, Martinez and the other Mexican/Latino TN visa holders consistently earned an overtime rate of pay that was less than one-and-one-half times their regular rate of pay. Id. at 27. The $100 weekly deduction from the workers’ wages exceeded the reasonable cost and fair value of the housing and transportation. Id.

Around August 2022, Martinez learned that GFA was paying him and his Mexican/Latino engineer coworkers less than what it paid American and non-Latino workers with no professional qualifications in similar jobs or jobs with fewer job responsibilities. Id. at 28. After deductions, Martinez earned approximately $11 per hour, but American and non-Latino coworkers who worked in similar positions to Martinez told him that GFA paid them between $17–18 per hour. Id. The only people GFA hired as Industrial Engineers who were not employed as engineers were those who were Hispanic/Latino or of Mexican national origin. Id. As such, Martinez and the other TN visa holders hired as engineers earned considerably less than American and/or non-Latino, non-Mexican employees with equivalent professional qualifications that GFA hired as engineers, who were paid between $79,000 and $123,000 per year according to Glassdoor.com. Id.

GFA also required Martinez and his Mexican/Latino coworkers to work long shifts with mandatory excessive overtime hours—often eleven-and-a-half hours a day or more, which caused Martinez to suffer from exhaustion, headaches and eye pain when he was in daylight. Id. at 29. GFA did not require Martinez's American and non-Latino coworkers to work so much overtime. Id. Martinez complained in meetings with GFA's management about the differences between how GFA treated American and non-Latino workers and Mexican/Latino workers. Id. On at least five separate occasions, GFA management told Martinez and other Mexican/Latino workers that they could go back to Mexico if they did not like their treatment and that there were plenty of other workers who could take their place. Id. GFA management threatened Martinez and his Mexican/Latino TN colleagues with a false ultimatum—accept discriminatory working conditions or go back to Mexico. Id. at 130.

In June 2022, Martinez and his Mexican/Latino TN visa coworkers who were assigned to the night shift began to complain in daily pre-shift meetings with GFA management, including Josh Kim, Travis Fox and Jeff Hammond, that they were required to perform manual labor instead of their promised engineering duties, about the lack of clarity in how overtime pay was calculated and that their pay did not match what they had been promised. Id. After Martinez raised his June 2022 complaints, his work assignments became more numerous and arduous, and he was required to work faster to complete them. Id. at 30–31. Beginning in or around mid-August 2022, Martinez and his Mexican/Latino TN visa coworkers began to lodge additional complaints in their daily meetings with GFA management about the fact that they had been assigned to the night shift, while similarly situated American and non-Latino workers were permitted to work the day shift. Id. at 31. In response to these complaints, Kim, Fox and Hammond again told Martinez and his Mexican/Latino coworkers they should return to Mexico if they did not like the working conditions. Id.

Beginning in or around late August 2022, Martinez and his Mexican/Latino TN visa coworkers complained during their daily meetings with GFA management that their American and non-Latino coworkers performing the same tasks were being paid a higher hourly rate. Id. In response, Kim, Fox and Hammond again told the workers that they should return to Mexico if they did not like their wages. Id. at 31–32. GFA also communicated to Martinez and the other Mexican/Latino TN visa workers that if they were to quit or be fired, they would have to leave their apartments immediately. Id. at 32. On December 4, 2022, Martinez reached his breaking point, was constructively discharged and ended his employment with GFA. Id.

4. Plaintiff Soriano

Plaintiff Soriano was born and raised in Mexico. Id. at 32. She is a Mexican citizen, was educated and trained as a pharmaceutical chemist and worked as a professional chemist in Mexico for approximately six years before her employment with GFA and Glovis. Id. In or around early July 2022, Soriano was recruited by GFA to work as an Industrial Engineer through the TN visa program. Id. at 33. On or about July 6, 2022, Soriano had an interview with a GFA representative named Laura. Id. In or around late July 2022, Laura informed Soriano that she had been selected for the engineering position. Id. On or around August 12, 2022, GFA provided Soriano with an offer letter on GFA letterhead and signed by Lacey Maxwell, a GFA HR employee. Id. The offer letter specified that Soriano would work as an Industrial Engineer, consistent with her job application, interviews and professional background. Id. Soriano accepted the job offer and signed the offer letter the day she received it, in reliance on the misrepresentations in the letter. Id. at 34.

At the same time GFA transmitted the job offer, it sent a support letter to Soriano, which was on GFA letterhead, addressed to “Acting Nonimmigrant Visa Section Chief, American Consulate General” and signed by Maxwell. Id. The support letter specified that Soriano would work as an Industrial Engineer, that this role was “professional and specialized in nature and qualifies as Engineer under Appendix 1603.D.1. to Chapter 16 of the NAFTA” and included a detailed job description. Id. At the time Maxwell signed the offer letter and the support letter, she knew that the job described in each letter was non-existent. Id. at 34–35.

In the same August 12, 2022, email, GFA also included an information letter dated August 1, 2022, which contained side-by-side representations about the job in Spanish and English. Id. at 35. Soriano only reviewed the Spanish version because her English comprehension is limited. Id. In Spanish, the letter said that Soriano would perform operations work consistent with her experience, her qualifications and the TN visa requirements, but, in English, the letter instead said that she would perform physical labor. Id. at 36.

On or about September 8, 2022, the U.S. Consulate, in reliance on GFA's misrepresentations in the offer letter and support letter, issued a TN visa for Soriano to work with GFA as an engineer. Id. at 38. In or around November 2022, Soriano arrived in West Point, Georgia and began work for GFA and Glovis at Glovis's West Point Warehouse. Id. at 39. When Soriano arrived at the West Point Warehouse on or around November 17, 2022, GFA and Glovis assigned her to manual labor, without engineering duties. Id. For approximately her first week of work, she was required to work in the “steps” area, where she moved automobile parts instead of the engineering work that she had been promised. Id. Soriano's immediate supervisor, Jorge Encinas, then moved her to the “belower” area, where she had to move large, heavy boxes. Id. Around early December 2022, Soriano was reassigned to work as a “picker” in the “door garnish” area, where she had to pull and move large boxes filled with heavy car parts. Id. Soriano complained to GFA that she had been hired as an engineer and requested engineering duties, but the request was denied, and GFA and Glovis never assigned Soriano the engineering work that she had been promised. Id.

While employed by GFA and Glovis, Soriano worked eleven-hour shifts, five or six days each week, and she regularly worked more than 40 hours in a work week. Id. at 40. Her schedule and daily assignments depended on Glovis's needs and production schedule. Id. Soriano's supervisor Jorge Encinas provided a link to a Glovis digital application (subsequently identified as “Just in Sequence”) and instructed Soriano to install the application on her phone. Id. This Glovis app gave her the daily work schedule and work assignments, and it allowed Glovis to monitor her work by the minute. Id. Through the application, Glovis directed Soriano and other similarly situated workers to the areas of production that Glovis determined were deficient and instructed the workers to speed up production in these areas. Id. When Soriano completed the scheduled orders for each day, the Glovis application would indicate that she was “in the green,” meaning that she had complied with her job duties for the day. Id. Through the Glovis app and Glovis's in-facility computer screens, Soriano learned what work and what pieces needed to be prioritized. Id. at 42–43. Soriano understood that her GFA supervisors had access to additional Glovis systems, and they used that information to tell the workers when production needed to be doubled or delivery times needed to be reduced. Id. On at least two occasions in December 2022, Soriano's supervisors asked her to stay longer at the facility because Glovis's production needs had increased. Id.

Soriano observed a posting bearing the GFA and Kia logos on a bulletin board within the West Point Warehouse indicating TN visa workers could renew their I-94s. Id. at 43. Due to its supervision of Soriano and other TN visa workers, Glovis knew that those workers had been hired through GFA and were performing work that did not qualify for the TN visa program. Id. at 43. Soriano observed Glovis supervisors touring the warehouse and her GFA supervisors telling the Glovis supervisors what position she was working in. Id. Soriano's supervisor, Dustin Miller, explained that the Glovis supervisors had come to supervise their work and to ensure Glovis's digital systems for monitoring their work were operational. Id. Soriano also observed that a digital kiosk inside the warehouse had a screen where employees could review each worker's name, photo and which company employed them directly. Id. Soriano's supervisors required her to join a WhatsApp group for TN workers, where they provided the TN workers with a document—with a Hyundai Glovis logo—titled “Glovis Georgia 2023 Working Day Calendar” that detailed pay dates, workdays, holidays, shutdown days and production schedules for different shifts. Id. at 44.

During her employment, Soriano learned that GFA and Glovis were paying her and her Mexican/Latino coworkers less than what they paid American and non-Latino workers with similar jobs or jobs with fewer responsibilities. Id. One of the American and non-Latino employees who was also a picker like Soriano told her he earned $16.50 per hour, while Soriano earned only about $11 per hour before deductions. Id. Soriano complained to her immediate supervisor—Jorge Encinas—about the pay discrepancy between Mexican/Latino workers and American and non-Latino workers, and Encinas confirmed that non-Mexican/Latino workers were paid more than Mexican/Latino workers. Id. at 45. Encinas—a Mexican/Latino man—confirmed that he also earned less than American and non-Latino workers. Id. The only people hired as Industrial Engineers who were not employed as engineers were those who were Hispanic/Latino or of Mexican national origin. Id. Soriano also observed that Defendants allowed American and non-Latino workers working in the same or similar position as her to take more breaks than it allowed Soriano and her Mexican/Latino coworkers to take. Id. at 46. One of Soriano's managers, Dustin Miller, got angry when Soriano and her Mexican/Latino coworkers spoke in Spanish, told them to stop speaking Spanish and said repeatedly that it was “sickening” to hear them speak in Spanish. Id. Miller did not prohibit English-speaking employees from communicating with their coworkers in English. Id.

During her employment, Soriano and her Mexican/Latino TN visa coworkers were required to pay for employer-procured housing to live in and for travel between that housing and the Glovis campus in an employer-procured vehicle. Id. Soriano had to share a crowded, cockroach-infested three-bedroom, two-bathroom apartment with five other employees. Id. GFA forbade her and other residents of the apartments from having visitors. Id. 46–47. Soriano's employers deducted $100 per week for housing and transportation costs from her pay, although these deductions were not identified or reflected in her paystubs. Id. at 47. In addition to these deductions, Soriano and the other Mexican/Latino TN visa holders were each required to pay $10 per week in cash for gas to the van driver on duty. Id. GFA and Glovis did not require American and non-Latino workers in the same role as Soriano to live in and pay for employer-procured housing or to use employer-procured vehicles. Id. Soriano often worked more than 40 hours in a work week and was not paid overtime at the rate of one-and-one-half times her regular rate of pay for the hours in excess of 40. Id.

Soriano and the other Mexican/Latino TN workers could not freely use the GFA-provided transportation, which only took them between the West Point warehouse and the employer-provided housing or on occasional trips to buy groceries. Id. at 48. Nor was the housing and transportation voluntary—they had to accept both. Id. The $100 weekly deduction and $10 weekly gas money from Soriano's and other similarly situated Mexican/Latino workers’ wages exceeded the reasonable cost and fair value of the housing and transportation. Id.

5. Soriano's Pregnancy

On or around December 31, 2022, Soriano learned that she was pregnant. Id. at 49. On or around January 8, 2023, after Soriano had been moved to a work area that required her to perform heavy lifting, she informed her GFA team leader, Humberto, and other GFA managers that she was pregnant and asked to be assigned to a light-duty job. Id. GFA and Glovis refused to engage in an interactive dialogue regarding her request. Id. Instead, GFA managers told her on several occasions that GFA had never employed a pregnant worker with a TN visa and that she should return to Mexico because of her pregnancy. Id. A GFA manager, Jorge Encinas, also told Soriano several times that if she did not return to Mexico because of her pregnancy, GFA would probably fire her and that what she and her husband had done—becoming pregnant—was very wrong. Id. In these same conversations, Encinas told Soriano that “all worker information” was shared with Glovis because Glovis was in charge and Glovis made the decisions, including those about which workers stayed and which were to be fired. Id. at 50. Encinas told her multiple times that Glovis did not approve of her having become pregnant because Glovis gave her the opportunity to work legally in the United States. Id.

Soriano continued to perform the essential functions of her job without accommodation, but she felt pain when she engaged in heavy lifting, which she feared would harm her pregnancy. Id. After she disclosed her pregnancy, Soriano noticed that Encinas and team leader Humberto began visiting her workstation much more frequently to check on her progress and to count materials, though they did not subject other non-pregnant workers to this kind of increased scrutiny. Id. Soriano eventually learned from a colleague that after she requested an accommodation, GFA managers had told her coworkers that they must not help anyone in her area. Id. at 50–51. Several days after Soriano informed her GFA supervisor and managers that she was pregnant, Encinas and GFA HR Generalist Lacey Maxwell told her that they could not change her work area unless she had a doctor's note explaining her restrictions. Id. at 51. Soriano then repeatedly asked for permission to take time off to go to the doctor, but her managers refused. Id. Finally, after two or three weeks, GFA team leader Humberto gave Soriano written permission for time off for a medical appointment on February 6, 2023, to get a doctor's note about the medical restrictions related to her pregnancy. Id. Soriano observed that GFA managers allowed non-pregnant workers, including those who suffered injuries, to change work areas and perform light-duty work without requiring medical documentation. Id.

On or about February 1, 2023—24 days after she disclosed her pregnancy—her managers gave Soriano her first disciplinary report, claiming that she had left her workplace without completing her assigned orders. Id. at 53. Soriano observed that none of the other non-pregnant employees in the same or similar roles as her who left their workstation under the same circumstances received a disciplinary report. Id. Soriano had never received a disciplinary report or warning until she revealed that she was pregnant. Id. On or about February 4, 2023, Soriano's team leader Humberto required her team to perform extra work, even though her team had already completed the scheduled orders for the day. Id. Soriano's abdomen hurt intensely, and she feared the additional heavy labor would harm her pregnancy, but she complied with Humberto's directive and worked to fill the new orders. Id. That day, a GFA supervisor issued her a disciplinary write-up, claiming that Soriano had not complied with her job duties. Id. at 53–54. Soriano refused to sign the disciplinary action form, and GFA manager Dustin Miller threatened to call the police if she did not leave the Glovis premises. Id. at 54. The police arrived and told Soriano that she would have to leave because she had been fired. Id. When Soriano told the police she had not been fired, the police spoke with Miller, escorted Soriano to her apartment and then clarified that Soriano had not been fired and could return to work the following Monday. Id.

On or about Monday, February 6, 2023, Soriano had her first prenatal appointment, and her doctor wrote her a medical note stating that she could not safely move or lift more than 25 pounds. Id. at 55. On the same day, Soriano received an email from GFA manager Darin Brown telling her to come to his office. Id. Soriano informed Brown of her doctor's appointment and accommodation request to not lift more than 25 pounds, and Brown fired her. Id. He claimed, without providing specifics, that Soriano had not complied with employment policies, and he told her that she had one hour to vacate her GFA-procured apartment. Id. Soriano never stopped performing the essential functions of her job without accommodation. Id. GFA and Glovis could have accommodated Soriano's request for light duty and to not lift more than 25 pounds by placing her in other warehouse positions, such as in the “steps” area or as an engineer, but GFA and Glovis failed to engage in an interactive process relating to Soriano's accommodation request or her needs. Id. at 55–56.

6. The West Point Warehouse

Glovis contracted with GFA for the performance of work by Soriano and other similarly situated Mexican/Latino workers at the West Point Warehouse. Id. at 9. Glovis owned or controlled the premises, the equipment the workers used to perform their work and the commodities the workers handled as essential functions of their employment. Id. Glovis determined the hours Soriano and other similarly situated workers could access the West Point Warehouse, set quality control standards, had the power to re-hire and extend contracts and immigration status, established pay rates through its contract with GFA and determined work assignments. Id. Soriano and other similarly situated workers at the West Point Warehouse performed labor integral to Glovis's business, namely the production and transportation of automobile parts. Id.

Glovis closely supervised the work of Soriano and similarly situated workers through both in-person review and intensive digital monitoring, which included a system identified to Soriano as Just In Sequence that was hosted on glovisga.com. Id. at 10. Glovis required Soriano and her GFA supervisors to use Glovis-owned and controlled digital systems in the regular course of their work for Glovis. Id. These digital systems dictated their work assignments and monitored their progress. Id. Glovis periodically sent Glovis supervisors to personally inspect the West Point Warehouse and conduct quality control. Id. at ¶ 53. Soriano's direct supervisor, GFA employee Jorge Encinas, told Soriano on multiple occasions that GFA shared “all worker information” with Glovis, and Glovis decided whether Soriano and other of GFA's TN-visa workers would be fired or would be allowed to continue working at the West Point Warehouse. Id. Glovis management and supervisors often monitored Soriano's and other TN visa workers’ work while walking through the West Point Plant Warehouse with GFA. Id. at 11.

Glovis knew that many TN visa workers who had been recruited by GFA quit working very soon after starting work at the West Point Warehouse. Id. Glovis managers knew the reason they quit early was because the work was not consistent with the promises made during their recruitment and required under the TN visa program. Id. at 11, 60. Glovis knew that the TN visa did not apply to the manual labor positions in which it placed the GFA-recruited TN visa workers. Id. at 60.

7. Administrative Exhaustion

Soriano and Martinez exhausted their administrative remedies at the EEOC, and the EEOC issued them notices of right to sue, which Plaintiffs received on June 11, 2024. Id. at 11.

8. Plaintiffs’ Claims

Plaintiffs bring certain of their claims on behalf of a putative class of persons (the “GFA Class”), consisting of all individuals who, between June 20, 2019, and the present, (1) were hired by GFA; (2) were employed at the McDonough Warehouse or West Point Warehouse; (3) received wages from GFA; and (4) were TN visa holders. Id. at 65. Plaintiffs divide the GFA class into two putative subclasses—(1) the McDonough Subclass, consisting of all individuals of the GFA class who were employed at the McDonough Warehouse and were non-white Hispanic or Latino, non-U.S. citizens and of Mexican national origin and (2) the West Point Subclass, consisting of all individuals of the GFA class who were employed at the West Point Warehouse and were non-white Hispanic or Latino, non-U.S. citizens and of Mexican national origin. Id.

Plaintiffs bring 14 counts in the first amended complaint:

• In Count I, Plaintiffs and the putative GFA class bring a breach-of-contract claim under Georgia law against GFA, based on Plaintiffs’ jobs not matching the material terms of the employment set forth in GFA's offer letters and support letters;

• In Count II, Plaintiffs and the putative GFA class bring a Georgia Racketeer Influenced and Corrupt Organizations Act (“RICO”) claim under O.C.G.A. § 16-14-1 et seq. against GFA and Glovis;

• In Count III, Martinez and the putative McDonough Subclass bring race discrimination claims under 42 U.S.C. § 1981 (“Section 1981”) against GFA;

• In Count IV, Soriano and the putative West Point Subclass bring Section 1981 race discrimination claims against GFA and Glovis;

• In Count V, Martinez and the putative McDonough Subclass bring race and national origin discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) against GFA;

• In Count VI, Soriano and the putative West Point Subclass bring race and national origin discrimination claims under Title VII against GFA and Glovis;

• In Count VII, Plaintiffs and the putative GFA class bring a claim for filing false information returns under 26 U.S.C. § 7434 against GFA;

• In Count VIII, Soriano individually brings pregnancy discrimination claims under the Pregnancy Discrimination Act and Title VII against GFA and Glovis;

• In Count IX, Soriano individually brings retaliation claims under the Pregnancy Discrimination Act and Title VII against GFA and Glovis;

• In Count X, Soriano individually brings disability discrimination, failure to accommodate and unlawful interference claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, et seq. against GFA and Glovis;

• In Count XI, Martinez individually brings a retaliation claim under Title VII against GFA;

• In Count XII, Martinez and the putative McDonough FLSA Subclass bring minimum wage and overtime claims under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201, et seq. against GFA;

• In Count XIII, Soriano and the putative West Point FLSA Subclass bring minimum wage and overtime claims under the FLSA against GFA and Glovis;

• In Count XIV, Martinez individually brings a retaliation claim under the FLSA against GFA.

Id. at 75–115.

II. MOTIONS TO STAY DISCOVERY

The Court first considers the two pending motions to stay discovery and pretrial deadlines. On October 18, 2024, GFA filed a motion to stay discovery and local rule deadlines. [Doc. 26]. In the motion, GFA requests that the Court stay discovery and the deadlines for filing a joint preliminary report and discovery plan and serving initial disclosures ¹ until the Court has ruled on Glovis's then-pending motions to dismiss, [Doc. 17], and to sever and transfer, [Doc. 18], and GFA's “anticipated motion for partial judgment on the pleadings,” [Doc. 26, p. 2]. The Court subsequently denied as moot Glovis's then-pending motions, based on Plaintiffs’ filing of the first amended complaint, [Doc. 31], and GFA ultimately filed a partial motion to dismiss the first amended complaint, [Doc. 36], rather than a motion for partial judgment on the pleadings. Accordingly, the Court DENIES AS MOOT GFA's motion to stay discovery and local rule deadlines, [Doc. 26], as none of the motions on which the motion to stay was based are currently pending before the Court.

On November 22, 2024, Glovis filed a motion to stay this case while the Court considers its motion to sever and transfer and Defendants’ motions to dismiss. [Doc. 38, pp. 14–16]. Both GFA and Plaintiffs consent to a stay while the Court considers the pending motions to dismiss and to sever and transfer. [Doc. 44, p. 1] (“Plaintiffs do not oppose Glovis's requested stay while the Court considers the Defendants’ motions to dismiss.”); [Doc. 35] (GFA's reply brief arguing that a stay is warranted because Glovis and GFA intend to file motions to dismiss the first amended complaint).

A district court has discretion to suspend discovery pending a ruling on facial challenges to a complaint. Horsley v. Feldt, 304 F.3d 1125, 1131 n.2 (11th Cir. 2002). A district court also “has broad discretion to stay proceedings as an incident to its power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997). Each Defendant has filed a motion to dismiss, [Docs. 36, 37], and Glovis also has filed a motion to sever and transfer venue, [Doc. 38]. Accordingly, because Glovis's motion to stay is unopposed and otherwise appropriate under the caselaw, the motion to stay, [Doc. 38], is GRANTED. Discovery in this case is STAYED through the date of this order, as are the deadlines for filing a joint preliminary report and discovery plan and for filing initial disclosures.

III. MOTIONS TO DISMISS

A. Standard on a Motion to Dismiss

The Federal Rules of Civil Procedure require a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While a plaintiff need not include “detailed factual allegations” in the complaint, the requirement to demonstrate the grounds for 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). In other words, Rule 8 requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Instead, to survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal quotation marks omitted). “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.

These standards suggest a “two-pronged approach” for courts evaluating a motion to dismiss a complaint. Id. at 679, 129 S.Ct. 1937; Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010). First, “eliminate any allegations in the complaint that are merely legal conclusions.” Am. Dental Ass'n, 605 F.3d at 1290. While a court must accept the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff, Powell, 643 F.3d at 1302, it need not consider “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Nor should it consider “a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Second, “where there are well-pleaded factual allegations, assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Am. Dental Ass'n, 605 F.3d at 1290 (internal quotation marks omitted).

B. Glovis's Motion to Dismiss

1. Glovis's Arguments and Plaintiffs’ Response

Glovis filed a motion to dismiss all of the claims against it contained in the first amended complaint under Federal Rule of Civil Procedure 12(b)(6)—specifically, Counts II, IV, VI, VIII, IX, X and XIII. [Doc. 37, p. 2]. Glovis argues that Soriano fails to allege an employment relationship with Glovis to support her claims under Section 1981, Title VII, the ADA and the FLSA. [Doc. 37-1, pp. 16–25]. Glovis also argues that Soriano fails to sufficiently plead as to her discrimination claims under Section 1981 or Title VII, her Title VII retaliation claim, her ADA claims and her FLSA overtime claim. Id. at 25–47. Glovis further contends that Soriano has failed to plead her Georgia RICO claims. Id. at 47–50.

In response, Plaintiffs argue that Soriano has adequately alleged joint employment by Glovis because Glovis exerted sufficient control over GFA employees. [Doc. 46, pp. 3–11]. Plaintiffs further assert that Soriano has plausibly alleged her Section 1981 and Title VII discrimination claims, her Title VII hostile work environment and retaliation claims, her ADA claims and her FLSA overtime claim. Id. at 11–36. Plaintiffs argue that they have alleged that Glovis knew about GFA's conduct, such that they have plausibly alleged their Georgia RICO claims against Glovis. Id. at 36–49.

Glovis filed a reply brief, [Doc. 49], and the motion is now before the Court for consideration.

2. Georgia RICO

Plaintiffs bring claims against Glovis pursuant to the Georgia RICO Act, O.C.G.A. § 16-14-1 et seq. (Count II). [Doc. 25, pp. 76–87].² Specifically, Plaintiffs allege the existence of two “associated in fact” RICO enterprises: “RICO Enterprise I,” consisting of GFA and Glovis; and “RICO Enterprise II,” consisting of GFA, Glovis and non-party Capital People. Id. at 8.

“Because the Georgia RICO Act was modeled after the federal statute, [Georgia courts have] found federal authority persuasive in interpreting the Georgia RICO statute.” Aquino v. Mobis Ala., LLC, 739 F. Supp. 3d 1152, 1191–92 (N.D. Ga. 2024) (quoting Williams Gen. Corp. v. Stone, 279 Ga. 428, 614 S.E.2d 758, 760 (2005) (citations omitted)). “But even though federal RICO and Georgia RICO have many similarities, they also have a number of significant differences.” Id. (internal quotation marks and alterations omitted). Georgia's RICO statute, O.C.G.A. § 16-14-4, includes three subsections. Subsection (a) makes it unlawful for “any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain ․ any interest in or control of any enterprise, real property, or personal property of any nature, including money.” O.C.G.A. § 16-14-4(a). Subsection (b) makes it unlawful for “any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.” Id. § 16-14-4(b). Subsection (c) makes it unlawful for “any person to conspire or endeavor to violate any of the provisions of subsections (a) or (b).” Id. § 16-14-4(c). Plaintiffs bring Georgia RICO claims against Glovis under all three subsections. [Doc. 25, pp. 78–79].

a. O.C.G.A. § 16-14-4(a) and (b)

Glovis argues that Soriano fails to plausibly allege that Glovis violated O.C.G.A. § 16-14-4(a) and (b). [Doc. 37-1, pp. 48–49]. “An important distinction between the federal RICO statute and Georgia's RICO statute is that subsection (a) does not require proof of an enterprise. Subsection (b), however, does require proof of an enterprise.” Aquino, 739 F. Supp. 3d at 1192 (citations omitted).

i. Agreement

As to subsection (b), Glovis first argues that Soriano includes “no factual allegations that give rise to a plausible inference that the Defendants agreed to pursue the common purpose together.” [Doc. 37-1, p. 48] (internal quotation marks omitted, emphasis in original). Under O.C.G.A. § 16-14-3(3), an “enterprise” is defined as

any person, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity; or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental as well as other entities.

“An association-in-fact enterprise is simply a continuing unit that functions with a common purpose.” Cisneros v. Petland, Inc., 972 F.3d 1204, 1211 (11th Cir. 2020) (internal quotation marks omitted) (considering a claim under the federal RICO statute). “[A]n association-in-fact enterprise must possess three qualities: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise's purpose.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1352 (11th Cir. 2016) (internal quotation marks omitted) (considering a claim under the federal RICO statute).

Another judge on this court has recently considered this issue in a similar case involving the recruitment of foreign professionals through TN visas to work at automotive plants in Aquino. There, Judge Batten discussed whether the existence of an enterprise was sufficiently pled:

Traditionally, “the common purpose of making money was sufficient under RICO” to show an enterprise. Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1284 (11th Cir. 2006), abrogated on other grounds as recognized in Simpson v. Sanderson Farms, Inc., 744 F.3d 702 (11th Cir. 2014) (citation omitted). But in Cisneros, the Eleventh Circuit found that sort of “abstract common purpose ․ will not suffice.” 972 F.3d at 1211. Instead, when the alleged “ultimate purpose is to make money for themselves, a RICO plaintiff must plausibly allege that the participants shared the purpose of enriching themselves through a particular criminal course of conduct.” Id. at 1211–12 (emphasis added) (citations omitted). And to satisfy this requirement, Plaintiffs must allege facts sufficient to give rise to a plausible inference that the Defendants agreed to pursue the common purpose together. See Lechter v. Aprio, LLP, 565 F. Supp. 3d 1279, 1315 (N.D. Ga. 2021) (holding that Plaintiffs’ failure to “allege how Defendants agreed to employ any of these procedures as a part of a long-term criminal enterprise predicated on acts of mail and wire fraud” was “fatal to Plaintiffs’ Federal RICO claim” (quotation omitted)); Cisneros, 972 F.3d at 1213–14 (explaining that the plaintiff “was required to allege not just that [the defendant] had a fraudulent purpose, but that it was a common purpose, formed in collaboration with [the other defendants]”).

739 F. Supp. 3d at 1174.

Here, Plaintiffs present allegations outlining each Defendant's role in the purported scheme. Glovis contracted with GFA for workers at the West Point Warehouse. [Doc. 25, p. 9]. Soriano applied to a position that GFA posted and then was interviewed and hired by GFA. Id. at 33. GFA provided information to the U.S. Consulate to secure Soriano's TN visa. Id. at 34, 38. Once she obtained her TN visa, Soriano was jointly employed by GFA and Glovis. Id. at 8–10, 39–40. Both GFA and Glovis employees would supervise Soriano, and Soriano was required to use a Glovis-owned and controlled digital system that dictated her work assignments and monitored her progress. Id. at 10.

The crux of Glovis's argument is that “Soriano includes no factual allegations that ‘give rise to a plausible inference that the Defendants agreed to pursue the common purpose together,’ ” and the “failure to ‘allege how Defendants agreed to employ any of these procedures as part of a long-term criminal enterprise’ ․ was ‘fatal to Plaintiffs’ ․ RICO claim.’ ” [Doc. 37-1, p. 48] (quoting Lechter v. Aprio, LLP, 565 F. Supp. 3d 1279, 1315 (N.D. Ga. 2021)). In Aquino, the defendants made the same argument, and the court disagreed with their “contentions regarding the sort of allegations necessary to survive a motion to dismiss.” 739 F. Supp. 3d at 1175. Judge Batten found that:

The language in Lechter is important, but it is also important to consider its context. In Lechter, the plaintiffs attempted to allege a RICO enterprise consisting of a “diverse collection of accountants, lawyers, LLC managers, appraisers, and conservation organizations in multiple states.” Id. Judge Totenberg held that the complaint alleged enough conclusory allegations to make it only a “sheer possibility” that the defendants agreed to carry on the scheme rather than something that was “plausible on its face.” Id. (quoting United Food & Com. Workers Unions & Emps. Midwest Health Benefits Fund v. Walgreen Co., 719 F.3d 849, 855 (7th Cir. 2013)).

Unlike the “diverse collection” in Lechter, here we have four companies that are professionally aligned and intertwined․ Although the exact number of Allswell employees working at the Kia/Mobis plant is not known at this point, it is safe to assume that there are many, considering there is a process in place to jointly supervise the employees and grant them access to the plant.

Id. Judge Batten noted that, despite certain conclusory allegations, the plaintiffs in Aquino “allege[d] sufficient concrete facts to make these conclusory allegations plausible,” including the fact that the recruiting companies held themselves out as companies that recruit foreign national workers. Id. at 1175–76 (“Given that these companies are known to find and employ foreign workers through the TN visa process, it is plausible that Mobis and Kia knew that Allswell employees were TN visa holders and had to perform skilled work to satisfy the visa requirements.”). So too, here, where Plaintiffs allege that GFA “openly advertised that it was recruiting Mexican engineers to work with TN visas in Georgia automobile warehouses.” [Doc. 25, p. 60].

Additionally, Plaintiffs allege that Soriano was required to use a Glovis digital application that gave her daily work schedule and assignments and allowed Glovis to monitor her work and that Soriano observed Glovis supervisors touring the warehouse and being told what position she was working in by her GFA supervisors. Id. at 40, 43. There was also a digital kiosk in the West Point Warehouse where employees could review each worker's name, photo and which company employed them directly. Id. at 43. Further, Soriano's direct supervisor, GFA employee Encinas, told Soriano that “all worker information” was shared with Glovis and that Glovis made the decisions on which employees stayed and which were fired. Id. at 10, 16, 50. Thus, “it's certainly plausible that [Glovis] knew which employees were hired through [GFA] ․ [and because Glovis] representatives were involved in supervising [Soriano], it can readily be inferred that [Glovis] knew that the [GFA] employees were not performing the skilled work they were required to perform [under the TN visas].” Aquino, 739 F. Supp. 3d at 1176.

The concrete facts alleged are sufficient for the Court to conclude at the motion-to-dismiss stage that Plaintiffs have successfully pled that Glovis and GFA are part of an association-in-fact enterprise.

ii. Allegations about Glovis's Conduct

Next, Glovis argues, as to both O.C.G.A. § 16-14-4(a) and (b), that Soriano includes no allegations about Glovis's alleged bad conduct and alleges only that GFA engaged in the predicate acts underlying her Georgia RICO claims. [Doc. 37-1, pp. 48–49]. Plaintiffs allege that Glovis committed multiple predicate acts of mail fraud in violation of 18 U.S.C. § 1341, wire fraud in violation of 18 U.S.C. § 1343, foreign labor contracting fraud in violation of 18 U.S.C. § 1351 and visa fraud in violation of 18 U.S.C. § 1546. [Doc. 25, p. 80]. The court in Aquino discussed these predicate acts, noting that:

[m]ail or wire fraud occurs when a person (1) intentionally participates in a scheme to defraud another of money or property and (2) uses the mails or wires in furtherance of that scheme. Pleading mail and wire fraud requires that the defendant agreed to participate in a scheme to defraud and that he or she caused the mail or wires to be used in furtherance of the scheme. But the precise manner in which these frauds are committed is not required to be pleaded.

Visa fraud and fraud in foreign labor contracting prohibit largely the same conduct, but differ in the person to whom the defendant directs the misrepresentations. Visa fraud involves misrepresentations made on immigration forms submitted to the government. And fraud in foreign labor contracting involves misrepresentations to the foreign worker.

739 F. Supp. 3d at 1178 (internal quotation marks and citations omitted).

Because the predicate acts sound in fraud, Plaintiffs must satisfy Rule 9(b)’s heightened pleading requirements, “which require[ ] the plaintiff to ‘state with particularity the circumstances constituting fraud.’ ” Cisneros, 972 F.3d at 1216 (quoting Fed. R. Civ. P. 9(b)). To survive a motion to dismiss, Plaintiffs must plead “(1) the precise statements, documents, or misrepresentations made; (2) the time, place and person responsible for the statement; (3) the content and manner in which these statements misled the Plaintiffs; and (4) what the defendants gained by the alleged fraud.” Am. Dental Ass'n, 605 F.3d at 1291 (internal quotation marks omitted).

Glovis contends that the amended complaint does not include any allegations that it engaged in the predicate acts, arguing that Soriano's allegations do not raise “an inference that Glovis knew about GFA's purported bad conduct [related to recruiting Soriano and procuring her TN visa].” [Doc. 37-1, pp. 48–49]. Rather, Glovis contends that Soriano improperly imputes GFA's actions onto it and lumps the Defendants together. Id. at 48.

Plaintiffs “need only plead the existence of the fraudulent scheme in adherence with Rule 9(b), not each Defendant's specific role.” Aquino, 739 F. Supp. 3d at 1179. Here, Plaintiffs allege the specific misrepresentations GFA made during the recruiting/visa process, when it made them, why Plaintiffs relied on them and what each Defendant gained by the representations. See, e.g., [Doc. 25, pp. 20–21, 33–35, 80]. Plaintiffs include the documents containing these misrepresentations as attachments to the original complaint. [Docs. 1-5, 1-6, 1-7, 1-8, 1-9]. Glovis “requested that GFA recruit Mexican workers to come to the United States and work for Glovis pursuant to the TN visa program,” [Doc. 25, p. 15], and GFA made the misrepresentations during this recruitment. Plaintiffs also allege that Glovis knew the TN visa requirements and knew that the foreign workers recruited by GFA were not performing jobs that qualified for the TN visa. Id. at 15, 40, 43.

As in Aquino, Glovis “may not have directly made any of the misrepresentations, but [it] didn't need to.” 739 F. Supp. 3d at 1180 (“It is immaterial whether any particular Defendant physically placed a fraudulent document in the mail, so long as that Defendant knew that the use of the mails would follow in the ordinary course of business, or where such use could reasonably be foreseen, even though not actually intended.” (internal quotation marks and alteration omitted)). Plaintiffs’ allegations that Glovis requested that GFA recruit Mexican workers through the TN visa program and knew that the foreign workers recruited by GFA were not performing jobs that qualified for the TN visa (through Glovis's occasional supervision of the warehouse and its digital application for assigning work) “certainly make it plausible that [Glovis] could reasonably foresee the scheme would require use of the mails and making misrepresentations to the government and to the employees.” Id. (internal quotation marks omitted).

In simplest terms, Plaintiffs “must allege facts with respect to each defendant's participation in the fraud.” Am. Dental Ass'n, 605 F.3d at 1291. They have done that. Thus, the Court finds that, at this stage, Plaintiffs have adequately alleged Glovis's participation in the predicate acts for the Georgia RICO claims under O.C.G.A. § 16-14-4(a) and (b). As such, Glovis's motion to dismiss, [Doc. 37], is DENIED as to Plaintiffs’ Georgia RICO claims under O.C.G.A. § 16-14-4(a) and (b).

b. O.C.G.A. § 16-14-4(c)

Next, Glovis argues that Soriano's RICO conspiracy claim under O.C.G.A. § 16-14-4(c) fails because Soriano does not allege facts demonstrating that Glovis was a “knowing willing participant” in the conspiracy. [Doc. 37-1, pp. 49–50].

Under the Georgia RICO statute, it is unlawful for any person to “conspire or endeavor to violate” Georgia RICO. O.C.G.A. § 16-14-4(c). “Defendants may be liable for conspiracy to violate Georgia RICO ‘if they knowingly and willfully join a conspiracy which itself contains a common plan or purpose to commit two or more predicate acts.’ ” Turk v. Morris, Manning & Martin, LLP, 593 F. Supp. 3d 1258, 1310 (N.D. Ga. 2022) (quoting Wylie v. Denton, 323 Ga.App. 161, 746 S.E.2d 689, 693 (2013)). “To establish a conspiracy to violate Georgia RICO ․, Plaintiffs ․ have to show that the[ ] Defendants were knowing and willing participants in the alleged conspiracy rather than independent actors who were just going about their own business.” Id. at 1312–13 (internal quotation marks and alteration omitted). However, “[t]he existence of the conspiracy agreement does not have to be proven by direct evidence. Instead, it can be inferred from the conduct of the alleged participants or from circumstantial evidence of the scheme.” Aquino, 739 F. Supp. 3d at 1193 (internal quotation marks and alteration omitted); see Cisneros, 972 F.3d at 1220 (“A RICO conspiracy can be found through the conduct of the alleged participants or from circumstantial evidence of a scheme.” (internal quotation marks omitted)).³

“[W]hat is required to support a claim of RICO conspiracy is that plaintiffs allege an illegal agreement to violate a substantive provision of the RICO statute.” Aquino, 739 F. Supp. 3d at 1193 (internal quotation marks omitted). As explained above, Plaintiffs sufficiently alleged their Georgia RICO claims under O.C.G.A. § 16-14-4(a) and (b). “That necessarily means that the Court found that Plaintiffs plausibly alleged that [Glovis] ‘agreed to violate ․ the substantive provisions of the RICO laws.’ ” Id. at 1194 (quoting Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1269 (11th Cir. 2004)). Therefore, Glovis's motion to dismiss, [Doc. 37], is also DENIED as to Plaintiffs’ Georgia RICO claim under O.C.G.A. § 16-14-4(c).

3. Joint Employer

Glovis argues that Soriano's Section 1981, Title VII, ADA and FLSA claims should all be dismissed because Soriano does not allege facts raising an inference of an employment relationship with Glovis under any of these statutes. [Doc. 37-1, pp. 16–25]. Plaintiffs assert that Soriano has adequately alleged joint employment by Glovis. [Doc. 46, pp. 3–11]. The test for joint employment under Section 1981, Title VII and the ADA is slightly different than the test for joint employment under the FLSA, and thus, the Court will consider each joint employment test in turn.

a. Section 1981, Title VII and the ADA

Title VII makes it unlawful for an “employer” to “discriminate against any individual” because of her race, sex or national origin. 42 U.S.C. § 2000e-2(a)(1). The ADA bars employers from discriminating against “a qualified individual on the basis of disability.” Id. § 12112(a); see also id. § 12111(2) (defining “covered entity” in the context of the ADA to mean “an employer, employment agency, labor organization, or joint labor-management committee”). Section 1981 prohibits employers from intentionally discriminating in employment contracts on the basis of race. See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459–60, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (holding that Section 1981 “affords a federal remedy against discrimination in private employment on the basis of race”). Thus, Soriano must adequately allege an employment relationship between herself and Glovis to bring claims under these statutes.

Courts apply the same analysis to Section 1981, Title VII and ADA claims. See Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1347 n.1 (11th Cir. 2007) (“Both Title VII and § 1981 have the same requirements of proof and present the same analytical framework.”); see also Parker v. Esper, 856 F. App'x 807, 808–09 (11th Cir. 2021) (applying the same joint employment analysis to claims under Title VII and the ADA). The joint employer theory arises when “two entities contract with each other for the performance of some task, and one company retains sufficient control over the terms and conditions of employment of the other company's employees.” Lyes v. City of Riviera Beach, 166 F.3d 1332, 1341 (11th Cir. 1999) (en banc). The Eleventh Circuit has held that:

The test for determining whether two entities acted as joint employers is relatively straightforward:

The basis of the finding is simply that one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer. Thus the joint employer concept recognizes that the business entities involved are in fact separate but that they share or co-determine those matters governing the essential terms and conditions of employment.

Peppers v. Cobb County, 835 F.3d 1289, 1300 (11th Cir. 2016) (quoting Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1360 (11th Cir. 1994)). “Courts usually make such a determination by analyzing: (1) the means and manner of the plaintiff's work performance; (2) the terms, conditions, or privileges of the plaintiff's employment; and (3) the plaintiff's compensation.” Kaiser v. Trofholz Techs., Inc., 935 F. Supp. 2d 1286, 1293 (M.D. Ala. 2013) (citing Llampallas v. Mini–Circuits, Inc., 163 F.3d 1236, 1245 (11th Cir. 1998)).

As an initial matter, Glovis asserts that the correct test is whether the entity “is in control of the fundamental aspects of the employment relationship that gave rise to the claim,” as set forth in Lyes, 166 F.3d at 1345. [Doc. 37-1, p. 17]. However, as Plaintiffs correctly note, Glovis's reliance on the Lyes standard for the joint employer analysis is misplaced. [Doc. 46, p. 4 n.2] (citing Peppers, 835 F.3d at 1299 (“We are not aware of any case explicitly applying the Lyes framework to a ‘joint employer’ analysis, as opposed to the ‘single employer’ context arising in that case.”)). When considering whether two entities are joint employers, “the focal point of the inquiry is not which entity controlled the specific aspect of the relationship giving rise to a discrimination claim, but rather which entity or entities controlled the fundamental and essential aspects of the employment relationship when taken as a whole.” Peppers, 835 F.3d at 1301.

Glovis argues that Soriano's non-conclusory substantive allegations about her employment only relate to GFA, not Glovis. [Doc. 37-1, pp. 17–19]. And it is certainly fair to say that Soriano alleges that GFA had extensive control over the essential aspects of her employment—GFA interviewed and hired her, GFA employees provided her day-to-day supervision, Soriano was required to use and pay for GFA-procured housing and transportation, Soriano requested time off and accommodations from GFA employees who granted or denied the requests and GFA managers disciplined her and ultimately terminated her. [Doc. 25, pp. 33, 35, 39, 43–44, 46–49, 51, 53, 55]. However, the joint employer analysis is not an either/or scenario, and Soriano also alleges in the amended complaint that Glovis:

• owned or controlled the premises (the West Point Warehouse), the work equipment and the commodities the workers handled as essential functions of their employment;

• determined workers’ hours and work assignments, including via Glovis's digital application monitoring system, “Just In Sequence,” which gave Soriano her daily work schedule and work assignments;

• set quality control standards; and

• supervised workers’ performance through in-person review (by Glovis supervisors wearing Glovis badges) and digital monitoring (through software controlled by Glovis).

Id. at 9–11, 40–44. Soriano does not specifically allege that Glovis was directly involved in her hiring or firing, other than conclusory allegations that Glovis “affirmed and reaffirmed the termination of Plaintiff,” id. at 56, but Soriano does allege that Glovis:

• had the power to re-hire and extend contracts and immigration status;

• had the power to fire GFA employees (specifically, Soriano's GFA supervisor told her that Glovis was the decisionmaker who determined whether Soriano and others would be fired or allowed to keep working at the West Point Warehouse); and

• set work hours and schedules for employees of GFA, which had the effect that Glovis also retained control over the hourly workers’ compensation,

id. at 9–10, 43–44, 49.

Though it is a close question, these alleged facts plausibly show that both Glovis and GFA retained at least some control over the “fundamental and essential aspects” of Soriano's work. Peppers, 835 F.3d at 1301; see also Hardy v. Daniels, No. 23-CV-3006, 2024 WL 5701780, at *5–7 (N.D. Ga. May 20, 2024) (finding that, at the motion-to-dismiss stage, “the scales are tipped in favor of letting [claims that rely on a joint employer analysis] proceed” where the plaintiff alleged that she was supervised by a company, some of her job duties were directed by the company and the company paid for the equipment she used and the office where she worked), R. & R. adopted, 2024 WL 5701416 (N.D. Ga. June 6, 2024). Soriano offers enough factual content, particularly the facts that Glovis directed Soriano's daily work assignments through its digital application and occasionally reviewed workers’ performance in person, to draw the reasonable inference that Glovis and GFA are joint employers for the purpose of surviving a motion to dismiss. “This is not to say, however, that the determination of whether [Glovis] qualifies as [Soriano's] employer under [Section 1981, Title VII and the ADA] cannot be presented at the summary judgment stage after the parties have had an opportunity to uncover facts through discovery to support or refute this claim.” Kaiser, 935 F. Supp. 2d at 1293–94. However, at this early stage, the Court is limited to determining the sufficiency of the amended complaint and must construe the factual allegations made therein in a light most favorable to Soriano. Therefore, the Court finds that Soriano has alleged sufficient factual allegations to raise a plausible inference that Glovis was her joint employer for purposes of Section 1981, Title VII and ADA liability.

b. FLSA

Glovis also argues that Soriano does not plausibly allege that Glovis was her joint employer under the FLSA, which utilizes a different test to determine whether an entity is an employer than does Title VII, Section 1981 and the ADA. [Doc. 37-1, pp. 21–25].

Under the FLSA, to “employ” means “to suffer or permit to work,” 29 U.S.C. § 203(g), and “employer” includes “any person acting directly or indirectly in the interest of an employer in relation to an employee,” id. § 203(d). “The Supreme Court has described the definition of ‘employ’ as one with ‘striking breadth’,” Blanco v. Samuel, 91 F.4th 1061, 1080 (11th Cir. 2024) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)), and the Eleventh Circuit has said that the “statutory ‘suffer or permit to work’ definition is one of the broadest possible delineations of the employer-employee relationship,” Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276, 1287 (11th Cir. 2016) (quoting 29 U.S.C. § 203(g)). To determine whether an entity is an employer under the FLSA, courts “ask if, as a matter of economic reality, the individual is dependent on the entity.” Layton v. DHL Exp. (USA), Inc., 686 F.3d 1172, 1175 (11th Cir. 2012) (internal quotation marks omitted). The Eleventh Circuit considers eight factors to make that determination:

(1) the nature and degree of control of the workers;

(2) the degree of supervision, direct or indirect of the work;

(3) the power to determine the pay rates or the methods of payment of the workers;

(4) the right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers;

(5) preparation of payroll and the payment of wages;

(6) ownership of facilities where work occurred;

(7) performance of a specialty job integral to the business; and

(8) investment in equipment and facilities.

Blanco, 91 F.4th at 1080 (internal quotation marks omitted). No single factor is dispositive in this analysis. Id.

As to the first factor—control of the workers—Soriano alleges that Glovis determined workers’ hours and work assignments through its digital application and monitoring system, “Just In Sequence,” which gave Soriano her daily work schedule and work assignments. [Doc. 25, pp. 9–10, 40–44].⁴ As to the degree of supervision, direct or indirect, Soriano alleges that Glovis supervised workers’ performance through in-person review on occasion (by Glovis supervisors wearing Glovis badges) and through digital monitoring (through software controlled by Glovis). Id. at 10–11, 40–43. Although Soriano alleges that GFA employees disciplined and terminated her, id. at 53–55, she also alleges that her GFA supervisor told her that GFA shared “all worker information” with Glovis because Glovis made the decisions about which workers stayed and which were to be fired, id. at 50. The only allegation that Glovis was involved with the preparation of payroll and the payment of wages is Soriano's allegation that her GFA supervisors provided her with a Glovis-labeled document that detailed pay dates, workdays, holidays, shutdown days and production schedules for different shifts. Id. at 44. But there are no allegations regarding whether Glovis had the power to determine the pay rates or methods of payment for Soriano. Soriano alleges that Glovis owned the facility where she worked and the equipment used to perform the work. Id. at 9, 39. Finally, it is unclear whether Soriano performed a specialty job integral to Glovis's business where she alleges that she worked in the “ ‘steps’ area, where she moved automobile parts,” the “ ‘belower’ area, where she had to move large, heavy boxes,” and as “a ‘picker’ in the ‘door garnish’ area, where she had to pull and move large boxes filled with heavy car parts.” Id. at 39. The Eleventh Circuit has found that this factor relates to “workers [who] completed one process in the middle of a series of interdependent steps ․ [or] a worker who performs a routine task that is a normal and integral phase of the alleged employer's production.” Layton, 686 F.3d at 1180 (internal quotation marks and alteration omitted).

Soriano has alleged that Glovis had some level of control as to at least half of the relevant factors. Considered together, these allegations plausibly suggest, at least at this early stage of the proceedings, that Soriano was economically dependent on Glovis, within the meaning of the FLSA test for joint employment. Whether that will bear out after the parties engage in discovery remains to be seen, but it is enough at this juncture.

4. Title VII and Section 1981 Claims

Soriano, on behalf of a putative class, brings claims of race discrimination under Section 1981 (Count IV) and national origin and race discrimination under Title VII (Count VI). [Doc. 25, pp. 89–92, 94–96]. She also individually brings a claim of pregnancy discrimination under Title VII (Count VIII), id. at 98–100, and a claim of pregnancy retaliation under Title VII (Count IX), id. at 100–02. Glovis moves to dismiss Soriano's Title VII and Section 1981 claims against it. [Doc. 37-1, pp. 25–39]. Specifically, Glovis argues that Soriano cannot base her Section 1981 claim on her national origin, id. at 25; she cannot base her national origin and race discrimination claims under Title VII on her immigration status, id. at 26–27; her race, pregnancy and national origin discrimination claims under Section 1981 and Title VII fail because she has not identified proper comparators, id. at 27–32; she has not sufficiently alleged severe or pervasive harassment such that she can state a Title VII hostile work environment claim, id. at 32–37; her discrimination claims cannot be based on having to work required overtime, id. at 37–38; she fails to state a claim for failure to accommodate her pregnancy because she does not allege that she notified Glovis and does not identify a comparator, id. at 38–39; and she fails to allege causation to state a Title VII retaliation claim, id. at 39. The Court considers each of these arguments in turn.

a. Standards

Title VII provides that it is unlawful for an employer “to fail or refuse to hire or to discharge ․ or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, ․ sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1); see also id. § 2000e(k) (clarifying that the terms “because of sex” or “on the basis of sex” include “because of or on the basis of pregnancy”). “[I]n order to state a claim under § 1981, [a plaintiff] must allege (1) intentional race discrimination (2) that caused a contractual injury.” Ziyadat v. Diamondrock Hosp. Co., 3 F.4th 1291, 1296 (11th Cir. 2021). It is well established in the Eleventh Circuit that Title VII and Section 1981 “have the same requirements of proof and use the same analytical framework.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).

Supreme Court precedent holds that the complaint in an employment discrimination case need not contain specific facts establishing a prima facie case under McDonnell Douglas ⁵ to survive a motion to dismiss. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510–11, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Nevertheless, the Eleventh Circuit has since held that complaints alleging discrimination still must meet the plausibility standard of Twombly and Iqbal. Henderson v. JP Morgan Chase Bank, N.A., 436 F. App'x 935, 937 (11th Cir. 2011) (holding that although a complaint in an employment case need not establish a prima facie case to survive a motion to dismiss, it still must satisfy the standards of Twombly and Iqbal). The complaint must “provide enough factual matter (taken as true) to suggest intentional ․ discrimination.” Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1246 (11th Cir. 2015) (internal quotation marks omitted).

In this case, therefore, Soriano must allege sufficient non-conclusory factual matter to state a plausible claim for relief on her claims of race discrimination under Title VII and Section 1981, national origin and pregnancy discrimination under Title VII and pregnancy retaliation under Title VII. While Soriano need not establish a prima facie case to survive Glovis's motion to dismiss, Swierkiewicz, 534 U.S. at 510–11, 122 S.Ct. 992, it is useful for guidance purposes to note that a plaintiff can establish a prima facie case of race, sex and national origin discrimination by showing that: (1) Plaintiff was a member of a protected class; (2) Plaintiff was subjected to an adverse employment action; (3) Plaintiff's employer treated similarly situated employees outside of her protected class more favorably than she was treated; and (4) Plaintiff was qualified for her position, Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006). A plaintiff can establish a convincing mosaic of discrimination by showing “evidence that demonstrates, among other things, (1) suspicious timing, ambiguous statements, and other bits and pieces from which an inference of discriminatory intent might be drawn, (2) systematically better treatment of similarly situated employees, and (3) that the employer's justification is pretextual.” Lewis v. City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019) (internal quotation marks and alteration omitted).

b. Section 1981 and National Origin

Glovis first argues that, to the extent Soriano premises her Section 1981 claim on her national origin, her claim should be dismissed because Section 1981 only applies to claims of race discrimination. [Doc. 37-1, p. 25].

The Supreme Court has held that Section 1981 protects against discrimination based on race as the term “race” was understood in the nineteenth century, when Section 1981 became law. Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609–13, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987). Specifically, “Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics ․ whether or not it would be classified as racial [discrimination] in terms of modern scientific theory.” Id. at 612–13, 107 S.Ct. 2022 (noting that “Mexicans,” among other categories, were referenced as a race during the legislative debates on Section 1981). “In some contexts, national origin discrimination is so closely related to racial discrimination as to be indistinguishable,” and thus, “while discrimination purely on the basis of national origin does not create a cause of action under section 1981, ․ a complaint by Mexican-Americans alleging racial and ethnic discrimination clearly states a cause of action under the statute.” Bullard v. OMI Ga., Inc., 640 F.2d 632, 634 (5th Cir. 1981).⁶

Here, Soriano alleges that she and other Mexican and Latino workers were paid less and treated differently than non-Latino workers (by not being employed as engineers, by being allowed fewer breaks, by not being allowed to speak Spanish and by being required to use and pay for employer-procured housing and employer-procured transportation). [Doc. 25, pp. 45–47]. This is enough, at this stage, to plausibly allege that she was subjected to discriminatory treatment based on her race and to allow her Section 1981 claim to proceed. See, e.g., Guerlin v. Mia. Gardens Apartments, LLC, No. 19-24081-Civ, 2020 WL 510163, at *3 (S.D. Fla. Jan. 31, 2020) (“[T]he Court will not dismiss the section 1981 claims at this stage because the Plaintiff alleges that the discrimination is based at least partly on race. This argument may be raised against at summary judgment, but, at this stage, the case should not be dismissed.”).

c. Title VII and Immigration Status

Glovis similarly argues (relying entirely on out-of-circuit authority) that Soriano's Title VII race and national origin discrimination claims fail because they are essentially claims of immigration or immigration status discrimination, which is not covered by Title VII. [Doc. 37-1, pp. 26–27]. This argument also fails.

Though Glovis is correct that Title VII does not protect against discrimination based on citizenship, see Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 95, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973) (noting that “nothing in [Title VII] makes it illegal to discriminate on the basis of citizenship or alienage”), Soriano alleges that her Title VII claims are based on her race and national origin. As set forth above, Soriano alleges that she and other Mexican and Latino workers were paid less and treated differently than American and non-Latino workers (by not being employed as engineers, by being allowed fewer breaks, by not being allowed to speak Spanish and by being required to use and pay for employer-procured housing and employer-procured transportation). [Doc. 25, pp. 45–47]. This is enough, at this stage, to plausibly allege that she was subjected to discriminatory treatment based on her race and national origin and to allow her Title VII race and national origin discrimination claims to proceed. See, e.g., Aquino, 739 F. Supp. 3d at 1227–28 (finding that the plaintiffs had sufficiently pled claims of race and national origin discrimination under Title VII where the complaint was “not limited to facts supporting a claim of discrimination based solely on plaintiffs’ immigration status” and contained adequate factual allegations of race and national origin discrimination (internal quotation marks and alteration omitted)).

d. Comparators for Discrimination Claims

Glovis next argues that Soriano fails to allege intentional discrimination based on her race, sex or national origin under Title VII or Section 1981 because her conclusory allegations about comparators are not enough to support a reasonable inference of discrimination. [Doc. 37-1, pp. 27–32].

In the first amended complaint, Soriano summarily alleges that:

• “GFA and Glovis were paying her and her Mexican/Latino coworkers less than what they paid American and non-Latino workers with similar jobs or jobs with fewer job responsibilities”;

• An “American and non-Latino employee[ ] who was also a picker like Plaintiff Soriano” earned more per hour than Soriano did;

• “American and non-Latino workers working in the same or similar position as her [were allowed] to take more breaks than” Soriano and her Mexican/Latino coworkers;

• “GFA and Glovis did not require American and non-Latino workers in the same role as Plaintiff Soriano to live in and pay for employer-procured housing or to use employer-procured vehicles”; and

• “[N]on-pregnant workers, including workers who suffered injuries, [were allowed] to change work areas and perform light-duty work without requiring medical documentation.”

[Doc. 25, pp. 44, 46–47, 51]. The Court agrees with Glovis that allegations like these are simply not enough to plausibly allege a proper comparator. See Duckworth v. Ga. Dep't of Hum. Servs., No. 22-CV-4326, 2024 WL 1377650, at *4 (N.D. Ga. Mar. 31, 2024) (finding that the plaintiff's allegations that certain female employees “in the same position” as the plaintiff were treated more favorably did “not come close to indicating the existence of another employee ‘similarly situated in all material respects’ ”); Walton v. Ga. Dep't of Cmty. Affs., No. 21-CV-4164, 2022 WL 3337405, at *4 (N.D. Ga. May 20, 2022) (finding that the plaintiff's allegations that a woman of a different race and “less experience” was treated more favorably were not sufficient to plausibly allege a valid comparator), R. & R. adopted, 2022 WL 3337406 (N.D. Ga. July 6, 2022).

However, the failure to allege a comparator does not preclude Soriano's claims because she alleges other facts to plausibly suggest that she was discriminated against based on her race, national origin or pregnancy under a convincing mosaic theory. See Tynes v. Fla. Dep't of Juv. Just., 88 F.4th 939, 946 & n.2 (11th Cir. 2023) (reiterating that a plaintiff's failure to produce a comparator—even at summary judgment or trial—“does not necessarily doom the plaintiff's case” and recognizing that the convincing mosaic standard can be of particular significance where a plaintiff cannot identify a comparator). Here, Soriano alleges that her immediate supervisor confirmed that non-Mexican/non-Latino workers were paid more than Mexican/Latino workers, that one of her managers told her to stop speaking Spanish and that it was “sickening” to hear them speak Spanish, that management told her that she should return to Mexico because of her pregnancy or she would likely be fired, that what she had done (becoming pregnant) was very wrong and that she was terminated immediately after she returned from her first prenatal appointment with a doctor's note restricting how much weight she could lift. [Doc. 25, pp. 8–9, 55]. These allegations, taken as true for the purposes of Glovis's motion to dismiss, plausibly suggest discrimination based on Soriano's race, national origin or sex, even without considering Soriano's comparator allegations.⁷

e. Title VII Hostile Work Environment Claim

Glovis next argues that Soriano's hostile work environment claim, alleged as part of her Count VI claim of race and national origin discrimination under Title VII,⁸ is due to be dismissed. [Doc. 37-1, pp. 32–37]. To state a claim for discriminatory hostile work environment based on race or national origin, a plaintiff must plausibly allege:

(1) that [she] is a member of a protected class; (2) that [she] was subjected to unwelcome ․ harassment; (3) that the harassment was based on [her protected category]; (4) that the harassment was severe or pervasive enough to alter the terms and conditions of [her] employment and create a discriminatorily abusive working environment; and (5) that the employer is responsible for the environment under a theory of either vicarious or direct liability.

Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1248–49 (11th Cir. 2014). “And the complained of behavior must result in an environment that a reasonable person would find hostile or abusive and an environment that the victim subjectively perceives to be hostile.” Malone v. U.S. Att'y Gen., 858 F. App'x 296, 302 (11th Cir. 2021) (internal quotation marks omitted) (citing Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002)). Glovis argues that Soriano has not alleged that she experienced sufficiently severe or pervasive harassment based on her race or national origin. [Doc. 37-1, pp. 32–37]. The Court agrees.

“[O]nly conduct that is ‘based on’ a protected category, such as race, may be considered in a hostile work environment analysis.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1297 (11th Cir. 2012). Soriano argues that she was forced to work in a role different than what she was promised; her manager told her to stop speaking Spanish and repeatedly said that it was “sickening” to hear her speak in Spanish; she was forced to work long, improperly compensated overtime; and she was forced to live in substandard, cockroach-infested housing.⁹ [Doc. 25, pp. 39, 46–47]; [Doc. 46, pp. 20–21]. Plaintiff has failed to allege that this behavior was severe or pervasive. In evaluating the objective severity of the complained of behavior, the Eleventh Circuit has considered, among other factors: “(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance.” Miller, 277 F.3d at 1276. “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotation marks and citations omitted); see also Miller, 277 F.3d at 1276 (“[I]t is repeated incidents of verbal harassment that continue despite the employee's objections that are indicative of a hostile work environment and not simply some magic number of racial or ethnic insults.” (internal quotation marks and alterations omitted)).

The majority of the conduct Soriano alleges to support her hostile work environment claim is not the type of harassing behavior typically considered for such claims, and Soriano cites no case law to support her argument that the condition of her employer-procured housing, a change in her expected job role or being required to work overtime constitutes harassment in the workplace that amounts to a hostile work environment. And there are simply no factual allegations to support an inference that Soriano's supervisor's prohibition on speaking Spanish and repeated comments that hearing Spanish was “sickening” amounts to the type of severe or pervasive conduct necessary to support a hostile work environment claim. See, e.g., Banks v. Cypress Chase Condo. Ass'n B, Inc., 616 F. Supp. 3d 1316, 1321–22 (S.D. Fla. July 21, 2022) (granting a motion to dismiss and finding that “calling [the plaintiff] a liar, referring to her as ‘you people,’ ․ accusing her of poor performance, and yelling at her—falls short of creating a hostile work environment”); Evans v. Atlanta Pub. Schs., No. 15-CV-3652, 2016 WL 6824422, at *5 (N.D. Ga. Sept. 20, 2016) (finding that the plaintiff failed to state a plausible claim for hostile work environment where she alleged two instances of racially offensive statements), R. & R. adopted, 2016 WL 6476826 (N.D. Ga. Nov. 1, 2016). Therefore, Glovis's motion to dismiss is GRANTED as to Plaintiff's hostile work environment claim contained in Count VI.

f. Required Overtime as an Adverse Action

Glovis argues that having to work overtime does not amount to an adverse employment action for purposes of a discrimination claim. [Doc. 37-1, pp. 37–38]. Glovis cites to Aquino, where Judge Batten concluded that mandatory overtime, even when coupled with threats of termination and deportation, is not an adverse employment action for purposes of Title VII and Section 1981 discrimination claims. 739 F. Supp. 3d at 1198–99. In response, Soriano argues that whether overtime constitutes an adverse action should be evaluated on a record developed after discovery and that the Supreme Court's recent decision in Muldrow v. City of St. Louis, 601 U.S. 346, 144 S.Ct. 967, 218 L.Ed.2d 322 (2024), calls into question the reasoning of cases relied upon in Aquino. [Doc. 46, pp. 21–24]. The Court finds Soriano's argument persuasive.

Aquino determined that mandatory overtime was not an adverse employment action, meaning something that caused “a serious and material change in the terms, conditions, or privileges of employment.” 739 F. Supp. 3d at 1198–99 (internal quotation marks omitted). However, the Supreme Court in Muldrow clarified that a plaintiff must “show some harm respecting an identifiable term or condition of employment” to make out a Title VII discrimination claim, but the plaintiff does not have to show that the harm was “significant ․ [o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” 601 U.S. at 354–55, 144 S.Ct. 967 (internal quotation marks omitted) (noting that whether the harm of an alleged adverse action “is significant ․ can lie in the eye of the beholder—and can disregard varied kinds of disadvantage”). Although Aquino was decided after the Supreme Court's decision in Muldrow, Aquino does not mention or consider Muldrow ¹⁰ and relies on case law that an adverse action must “substantially” alter the terms and conditions of the plaintiff's employment (or constitute “a serious and material change” in those terms and conditions), which appears to be the wrong standard after Muldrow.

Here, Soriano plausibly alleges that she was required to work overtime but was not paid properly at an overtime rate. [Doc. 25, pp. 47–49]. Under Muldrow, Soriano “need show only some injury respecting her employment terms or conditions ․ [the adverse action] must have left her worse off, but need not have left her significantly so.” 601 U.S. at 359, 144 S.Ct. 967. Soriano's allegations, if supported after discovery, could plausibly meet that test. Accordingly, Glovis's motion to dismiss Soriano's Title VII and Section 1981 discrimination claims based on having to work mandatory overtime is DENIED.

g. Failure to Accommodate Pregnancy Claim

Glovis next argues that Soriano fails to state a claim for failure to accommodate her pregnancy under Title VII because she does not allege that she ever notified Glovis of her pregnancy status or her need for accommodation, and she does not allege proper comparators. [Doc. 37-1, pp. 38–39].

As discussed above, the Pregnancy Discrimination Act amended Title VII to clarify that discrimination based on “sex” includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). “Analytically speaking, then, pregnancy-related discrimination claims under Title VII are a subspecies of sex discrimination and the same analysis applies.” Small v. Hire Dynamics Skilled Staffing, Inc., No. 23-CV-2920, 2023 WL 11979675, at *3 (N.D.), R. & R. adopted, 2024 WL 4800359 (N.D. Ga. Jan. 3, 2024). In this case, therefore, Soriano must allege sufficient non-conclusory factual matter to state a plausible claim for relief on her claim of pregnancy discrimination under Title VII. While she need not establish a prima facie case to survive Glovis's motion to dismiss, Swierkiewicz, 534 U.S. at 510–11, 122 S.Ct. 992, it is useful for guidance purposes to note that a plaintiff can establish a prima facie case of failure to accommodate pregnancy under Title VII by showing that: (1) “she belongs to the protected class”; (2) “she sought accommodation”; (3) “the employer did not accommodate her”; and (4) “the employer did accommodate others similar in their ability or inability to work,” Young v. United Parcel Serv., Inc., 575 U.S. 206, 229, 135 S.Ct. 1338, 191 L.Ed.2d 279 (2015) (internal quotation marks omitted). A plaintiff can establish a convincing mosaic of discrimination by showing “evidence that demonstrates, among other things, (1) suspicious timing, ambiguous statements, and other bits and pieces from which an inference of discriminatory intent might be drawn, (2) systematically better treatment of similarly situated employees, and (3) that the employer's justification is pretextual.” Lewis, 934 F.3d at 1185 (internal quotation marks and alteration omitted); see also Mohammed v. Jack. Hospitalists, P.A., 712 F. App'x 872, 878 n.5, 880 (11th Cir. 2017) (applying the convincing mosaic standard in a pregnancy discrimination case).

The Court already found in Part III.B.3.a. of this Order that Soriano has plausibly alleged that GFA and Glovis were joint employers. Soriano has also alleged that she informed her GFA supervisors of her pregnancy and her request for accommodation, that her supervisors made negative comments about her pregnancy, that her GFA supervisor told her that “all worker information” was shared with Glovis, that Glovis knew about and disapproved of her pregnancy and that, less after a month after Soriano's own request to be moved to light duty was ignored, her non-pregnant roommate requested and was granted a transfer to a light-duty area without having to provide a doctor's note. [Doc. 25, pp. 49–51]. This is enough, at the motion-to-dismiss stage, to plausibly allege a claim of failure to accommodate pregnancy under Title VII. See Small, 2023 WL 11979675, at *4–5 (finding that a plaintiff alleged a plausible pregnancy discrimination claim even though the plaintiff did not sufficiently allege a suitable comparator). Glovis's motion to dismiss Soriano's Title VII failure to accommodate pregnancy claim is DENIED.

h. Causation for Title VII Retaliation Claim

Glovis argues that Soriano fails to state a claim for Title VII retaliation related to her pregnancy (Count IX) because she does not allege that anyone at Glovis knew of her pregnancy status or her need for accommodation. [Doc. 37-1, p. 39]. This argument also fails.

Title VII, in addition to prohibiting intentional discrimination, also prohibits retaliation against an employee who has “opposed any practice made an unlawful employment practice” by Title VII. 42 U.S.C. § 2000e-3(a); Ceus v. City of Tampa, 803 F. App'x 235, 244 (11th Cir. 2020). As with her other Title VII claims, while Soriano need not establish a prima facie case of retaliation under Title VII to survive Glovis's motion to dismiss, Swierkiewicz, 534 U.S. at 510–11, 122 S.Ct. 992, it is useful to note that she can establish a prima facie case of retaliation under McDonnell Douglas by showing that she: “(1) engaged in a statutorily protected activity, (2) suffered a materially adverse action, and (3) established a causal link between the protected activity and the materially adverse action,” Ceus, 803 F. App'x at 244–45 (citing Bryant v. Jones, 575 F. 3d 1281, 1307–08 (11th Cir. 2009) and Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). Soriano can also “prove retaliation with any circumstantial evidence that creates a reasonable inference of retaliatory intent.” Berry v. Crestwood Healthcare LP, 84 F.4th 1300, 1310–11 (11th Cir. 2023) (holding that an employee may rely on a “convincing mosaic” of circumstantial evidence to prove retaliation).

Glovis argues that this claim should be dismissed because Soriano does not plead facts that anyone at Glovis even knew about her pregnancy or her request for a pregnancy accommodation. [Doc. 37-1, p. 39]. However, after she requested an accommodation from her GFA managers, Soriano alleges that her GFA supervisor told her that “all worker information” was shared with Glovis and that Glovis knew about and disapproved of her pregnancy. [Doc. 25, p. 50]. At this stage, this is enough to plausibly allege that Glovis knew about her pregnancy and her request for accommodation. Accordingly, Glovis's motion to dismiss Soriano's Title VII retaliation claim is DENIED.

5. ADA Claims

Soriano individually brings claims of disability discrimination, failure to accommodate and unlawful interference under the ADA (Count X). Id. at 102–106. Glovis moves to dismiss Soriano's ADA claims, and the Court considers each of its arguments in turn. [Doc. 37-1, pp. 39–45].

a. Disparate Treatment

Under § 12112(a) of the ADA, an employer is generally prohibited from “discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The definition of “discriminate” includes a failure to make reasonable accommodations to the limitations of a qualified individual with a disability unless the employer can demonstrate that the accommodation would impose an undue hardship. Id. § 12112(b)(5)(A). “While pregnancy is generally not considered a disability [under the ADA], a pregnancy-related impairment may be considered a disability, if it substantially limits a major life activity.” Jeudy v. Att'y Gen., Dep't of Just., 482 F. App'x 517, 519–20 (11th Cir. 2012) (considering the Rehabilitation Act and noting that Rehabilitation Act claims are governed by the same standards as ADA claims).

“[T]here are two distinct categories of disability discrimination claims under the ADA: (1) failure to accommodate and (2) disparate treatment.” EEOC v. Eckerd Corp., No. 10-CV-2816, 2012 WL 2568225, at *4 (N.D. Ga. July 2, 2012). Here, Plaintiff alleges both. [Doc. 25, pp. 102–106]. The primary difference between a disparate treatment claim and a failure-to-accommodate claim is that, under a disparate treatment claim, the plaintiff must prove discriminatory intent, while a discriminatory motive is not necessary for a reasonable accommodation claim. See Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1262–63 (11th Cir. 2007) (“[A]n employer's failure to reasonably accommodate a disabled individual itself constitutes discrimination under the ADA ․ There is no additional burden on [the employee] to show that [the employer] enforced its punctuality policy in a discriminatory manner.”). “A complaint alleging discrimination under the ADA need not allege facts sufficient in themselves to make out a prima facie case of disability discrimination, which is an evidentiary standard for summary judgment, but must merely allege facts ․ that allow the Court to conclude that it is plausible that an adverse employment action was made on the basis of an actual or perceived disability.” Jones v. Silver Line Bldg. Prods. LLC, No. 20-CV-2042, 2020 WL 10183992, at *2 (N.D. Ga. Oct. 9, 2020), R. & R. adopted, 2020 WL 10184047 (N.D. Ga. Oct. 28, 2020). To meet this standard, a plaintiff “need only allege facts plausibly suggesting the following: ‘(1) that [s]he suffers from a disability, (2) that [s]he is a qualified individual, and (3) that a ‘covered entity’ discriminated against h[er] on account of h[er] disability.’ ” Id. (quoting Surtain, 789 F.3d at 1246).

As to Soriano's disparate treatment claim, Glovis argues that she has not alleged that Glovis knew about her disability status ¹¹ or that she was treated differently than other employees because of her disability. [Doc. 37-1, pp. 39–41]. As explained in Part III.B.3.a of this Order, Soriano has plausibly alleged that GFA and Glovis were joint employers. Soriano has also alleged (1) that she informed her GFA supervisors of her pregnancy and her request for accommodation, (2) that her supervisors made negative comments about her pregnancy, (3) that her GFA supervisor told her that “all worker information” was shared with Glovis and that Glovis knew about and disapproved of her pregnancy, (4) that, less than a month after Soriano's own request to be moved to light duty was ignored, her non-pregnant roommate requested and was granted a transfer to a light-duty area without having to provide a doctor's note and (5) that Soriano was terminated in the same meeting where she informed her manager that her doctor had given her lifting restrictions due to her pregnancy. [Doc. 25, pp. 49–51, 55]. Put simply, this is enough, at the motion-to-dismiss stage, to plausibly allege a claim of disparate treatment under the ADA. See Jones, 2020 WL 10183992, at *5–6 (finding that a plaintiff plausibly alleged disparate treatment under the ADA where he alleged that he informed his employer of his impairment, his employer required him to see a doctor regarding the limitations from his condition and ultimately his employer terminated him). Glovis's motion to dismiss Soriano's ADA disparate treatment claim is DENIED.

b. Failure to Accommodate

To prevail on a claim of disability discrimination based on a failure to accommodate under the ADA, a plaintiff must demonstrate that she (1) has a disability under the ADA; (2) was a “qualified individual” when she suffered the adverse employment action; and (3) was discriminated against because of her disability by being denied a reasonable accommodation that would allow her to keep working. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001); Cappetta v. N. Fulton Eye Ctr., No. 15-CV-3412, 2017 WL 5197207, at *25 (N.D. Ga. Feb. 1, 2017), R. & R. adopted, 2017 WL 5443877 (N.D. Ga. Mar. 7, 2017). Glovis argues that Soriano has failed to allege facts showing that she placed Glovis on notice of her need for a reasonable accommodation (or that Glovis even knew that she had a disability) or how a light-duty accommodation would allow her to perform the essential functions of her job. [Doc. 37-1, pp. 41–44].

As with her pregnancy discrimination claims, the Court finds that Soriano has alleged enough facts, at this early stage, to warrant discovery on this issue. Soriano has plausibly alleged that GFA and Glovis were joint employers. Soriano has also alleged that she informed her GFA supervisors of her pregnancy and her request to be moved to a light-duty position that would not require heavy lifting; that her GFA supervisor told her that “all worker information” was shared with Glovis and that Glovis knew about (and disapproved of) her pregnancy; that her managers told her they could not change her work area without a doctor's note explaining her restrictions but then refused to approve time off for Soriano to visit her doctor for several weeks; and, that Defendants could have accommodated her request for light duty and to not lift more than 25 pounds by moving her to another area of the warehouse, giving her work as an engineer or providing assistive equipment. [Doc. 25, pp. 48–51, 53]. Plaintiff has plausibly alleged that Glovis knew of her disability (and it can be inferred that Glovis knew of her request for accommodation through joint employer GFA) and that accommodating her request for light duty would have allowed her to perform her job duties. Soriano “has alleged sufficient facts with enough heft to set forth a plausible claim.” Barry v. Soash, No. 17-CV-2, 2018 WL 715404, at *3–4 (M.D. Ga. Feb. 5, 2018) (finding that the plaintiff alleged sufficient facts as to his ADA failure-to-accommodate claim to survive a motion to dismiss). Thus, Glovis's motion to dismiss Soriano's ADA failure-to-accommodate claim is DENIED.

c. Interference

Under the ADA's anti-interference provision, it is “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by [the ADA].” 42 U.S.C. § 12203(b). The Eleventh Circuit has not yet addressed the proper standard for evaluating an ADA interference claim. Atchison v. Bd. of Regents of Univ. Sys. of Ga., 802 F. App'x 495, 508–09 (11th Cir. 2020). “That said, at least one court in this Circuit has found that to make out an ADA interference claim, a plaintiff must show: ‘1) [the plaintiff] exercised a right protected by the ADA; 2) that [the defendant] coerced, intimidated, threatened, and/or interfered with [the plaintiff's] enjoyment of her ADA rights; and 3) [the defendant's] actions were motivated because [the plaintiff] exercised a right protected by the ADA.’ ” Callahan v. Emory Healthcare, Inc., No. 21-CV-1367, 2022 WL 18927486, at *14 (N.D. Ga. Nov. 10, 2022) (quoting Mosley v. AM/NS Calvert, LLC, No. CV 20-517, 2022 WL 843773, at *8 (S.D. Ala. Mar. 21, 2022) (alteration omitted)), R. & R. adopted, 2023 WL 2334987 (N.D. Ga. Feb. 16, 2023), aff'd, No. 23-10604, 2024 WL 3027684 (11th Cir. June 17, 2024).

Glovis argues that Soriano has not sufficiently alleged that it was on notice of her alleged disability or her intent to exercise rights under the ADA, that Glovis interfered with her rights or that Glovis had any discriminatory intent. [Doc. 37-1, pp. 44–45]. For the same reasons as discussed with Soriano's other ADA claims, the Court finds that this argument fails at this early stage.

Soriano has plausibly alleged that GFA and Glovis were joint employers. Soriano has also alleged that:

• she informed her GFA supervisors of her pregnancy and her request to be moved to a light-duty position that would not require heavy lifting;

• her GFA supervisors harassed her by telling her that she should return to Mexico because of her pregnancy, that she was likely going to be fired and that getting pregnant was wrong;

• her GFA supervisor told her that “all worker information” was shared with Glovis and that Glovis knew about (and disapproved of) her pregnancy;

• she was subjected to increased scrutiny and her coworkers were told not to assist anyone in her area;

• her managers told her they could not change her work area without a doctor's note explaining her restrictions but then refused to approve time off for Soriano to visit her doctor for several weeks;

• her managers assigned her additional work;

• her supervisors gave her pretextual disciplinary reports and called the police to remove her from the warehouse when she refused to sign a disciplinary report; and,

• she was fired in the same meeting when she presented a doctor's note containing lifting restrictions.

[Doc. 25, pp. 49–51, 53–54]. Soriano has plausibly alleged that Glovis knew of her disability (and it can be inferred that Glovis knew of her request for accommodation through joint employer GFA) and that Defendants interfered with her exercise of her ADA rights. Defendants’ discriminatory intent can be inferred from the close temporal proximity between Soriano's requests for accommodation in early January of 2023 and the interference, which began shortly after her initial request for accommodation and continued until her termination approximately one month later. Compare id. at 49 (Soriano first requested accommodation due to her pregnancy on January 8, 2023), with id. at 55 (Soriano was terminated on February 6, 2023, the same day that she relayed her doctor's accommodation request); see Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d 1306, 1316–17 (11th Cir. 2007) (recognizing, as to a Rehabilitation Act claim, that “mere temporal proximity” that is “very close” can be sufficient to show discriminatory motive (internal quotation marks omitted)). Accordingly, Glovis's motion to dismiss Soriano's ADA interference claim is DENIED.

6. FLSA Overtime Claim

Soriano, on behalf of a putative class, also bring claims of violations of the FLSA (Count XIII). [Doc. 25, pp. 111–14]. Glovis moves to dismiss Soriano's FLSA overtime claim based on the weekly deductions from her wages for housing and transportation,¹² arguing that, pursuant to 20 C.F.R. § 531.37, even if she plausibly alleges an improper deduction for housing and transportation, that deduction does not violate the FLSA if her regular rate minus the deduction is still higher than minimum wage. [Doc. 37-1, pp. 45–47]. The Court agrees.

Under the FLSA, the legal standard that applies to deductions turns on whether the deduction is for an item that is classified as being “board, lodging, or other facilities.” 29 U.S.C. § 203(m).¹³ Specifically, § 203(m) states that a “wage paid to any employee includes the reasonable cost ․ to the employer of furnishing such employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees.” Id. “Accordingly, the employer lawfully may deduct from an employee's pay the reasonable cost of employer provided housing and meals, even if that deduction results in the employee's cash pay falling below the statutory minimum.” Ramos-Barrientos v. Bland, 661 F.3d 587, 595 (11th Cir. 2011) (internal quotation marks and citations omitted). But “deductions for items that do not qualify as Section 203(m) facilities may not cut into the minimum or overtime wages required to be paid” under the FLSA. Lima v. Ranger Env't Servs., LLC, No. 20-CV-598, 2022 WL 3051227, at *4 (S.D. Ala. Aug. 2, 2022) (internal quotation marks omitted).

“Pursuant to 29 C.F.R. § 531.37(a), [an employer] could make deductions on the same basis in an overtime work week where [an employee] worked more than 40 hours in a week, provided that the amount deducted did not exceed the amount that could be deducted in a non-overtime week where [the employee] only worked 40 hours in a week.” Id. (internal quotation marks omitted). In Lima, the court found, at summary judgment, that the plaintiffs’ FLSA claim for failure to pay overtime failed as a matter of law because the employer's allegedly improper deductions ¹⁴ “did not reduce Plaintiffs’ wages below the minimum wage or reduce their overtime compensation.” 2022 WL 3051227, at *3. The court in Lima considered the issue in these terms:

Plaintiffs filed this suit against Defendants under the collective action provisions of the FLSA. Plaintiffs allege that Defendant's policy of mandating $15 be deducted from employees’ paychecks and held in an escrow account to cover the cost of licenses, training, certificates, and other miscellaneous items violates the overtime provisions of the FLSA when applied to employees who work more than 40 hours per week. Plaintiffs reason that Defendants’ policy deprives the employees of their overtime pay․ Specifically, Plaintiffs argue that the deductions constitute illegal kickbacks under 29 C.F.R. § 531.35, which relates to deductions taken from employee's pay for non-Section 203(m) items such as tools of the trade required to perform the job. Plaintiffs’ argument fails because the deductions at issue did not cause Plaintiffs’ pay to fall below the minimum wage of $7.25 per hour in any week or reduce their overtime compensation. See Lira v. Arrow Air., Inc., Civ. Act. No. 05-23273, 2006 WL 8433511, at *2, 2006 U.S. Dist. LEXIS 94935, at *5 (S.D. Fla. Apr. 18, 2006) (finding that deductions for uniforms did not violate the FLSA because the plaintiff's wages were always above the minimum wage for all hours worked). Plaintiffs here in the instant case were paid above the minimum wage.

Defendant contends that Plaintiffs’ straight time wage exceeded the amount they would have been due if they were paid at the minimum wage rate of $7.25 per hour. In a 40 hour work week at a minimum wage rate of $7.25/hour, Plaintiffs would have been entitled to a gross pay of $290/week (i.e. $7.25 x 40 = $290). Here, Plaintiffs were paid at an hourly rate well over the federal minimum wage of $7.25. Lima was paid $22.5/hour and Grace was paid $16/hour for all straight time work. At these rates, in a 40 hour work week Lima received a gross pay of $900/week (i.e. $22.5 x 40 = $900) and Grace received a gross pay of $640/week (i.e. $16 x 40 = $640). Accordingly, Lima's weekly pay exceeded the minimum wage weekly pay by $610 (i.e. $900 - $290 = $610) and Grace's weekly pay exceeded the minimum wage weekly pay by $350 (i.e. $640 - $290 = $350). Therefore, Plaintiffs’ pay for straight time work had a $610 and $350 buffer from which deductions could be made without reducing Plaintiffs’ pay below the minimum wage and without reducing any overtime compensation. It follows that there is no genuine issue of material fact as to whether [the employer's] policy violates FLSA.

2022 WL 3051227, at *5. The Court finds Lima persuasive and analogous to the instant case.

Applying the analysis in Lima, in a 40-hour work week at a minimum wage rate of $7.25 per hour, Soriano would have been entitled to a gross pay of $290/week (i.e., $7.25 x 40=$290). See 2022 WL 3051227, at *5. Soriano alleges that she was paid $11 per hour before any deductions, which is well over the federal minimum wage of $7.25. [Doc. 25, p. 44]. Therefore, in a 40-hour workweek, Soriano received gross pay of $440/week (i.e., $11 x 40= $440). Accordingly, Soriano's weekly pay exceeded the minimum wage weekly pay by $150 (i.e., $440 - $290 = $150). Therefore, Soriano's pay for straight-time work had a $150 buffer “from which deductions could be made without reducing [her] pay below the minimum wage and without reducing any overtime compensation.” Lima, 2022 WL 3051227, at *5. Soriano alleges that Defendants deducted $100 per week from her pay for housing and transportation costs and required her to pay $10 per week in cash for gas to the van driver (for a total of $110 per week). [Doc. 25, p. 47]. This $110 per week deduction does not exceed the $150 buffer from which deductions could be made. Thus, Defendants’ allegedly unlawful deductions do not violate the FLSA because the deductions do not reduce Soriano's pay below the minimum wage or reduce overtime compensation. See Lima, 2022 WL 3051227, at *5. Accordingly, Glovis's motion to dismiss Soriano's FLSA overtime claim based on unlawful deductions is GRANTED.

7. Class Action Claims

Soriano brings multiple claims on behalf of a purported class. As explained in Parts III.B.4.e and III.B.6 above, Soriano's hostile work environment claim contained in her Title VII claim (part of Count VI) and her FLSA overtime claim based on unlawful deductions (part of Count XIII) are dismissed. Accordingly, the related putative class claims are also dismissed. See Aquino, 739 F. Supp. 3d at 1199 (dismissing the related class claims where the court dismissed the plaintiffs’ claims because “[w]hen a named plaintiff has no cognizable claim for relief, she cannot represent others who may have such a claim, and her bid to serve as a class representative must fail” (internal quotation marks and citation omitted)).

C. GFA's Partial Motion to Dismiss

1. GFA's Arguments and Plaintiffs’ Response

GFA filed a partial motion to dismiss, seeking to dismiss all or part of 10 of the 14 causes of action pled against it in the first amended complaint under Federal Rule of Civil Procedure 12(b)(6)—specifically, Counts I, III, IV, V, VI, VII, XI, XII, XIII and XIV. [Doc. 36, pp. 1–2]. GFA argues that Plaintiffs’ breach of contract claims should be dismissed because the alleged contracts were at-will. [Doc. 36-1, pp. 8–11]. GFA argues that Plaintiffs fail to state a claim as to their discrimination claims under Section 1981 or Title VII, their claim for filing false information returns and their FLSA claims. Id. at 12–25, 32–40. GFA contends that Martinez's Title VII retaliation claim should be dismissed for failure to exhaust administrative remedies and because it fails to state a claim. Id. at 25–32. In response, Plaintiffs argue that they have adequately alleged each of the claims challenged by GFA. [Doc. 47]. GFA filed a reply brief, [Doc. 48], and the motion is now before the Court for consideration.

2. Breach-of-Contract Claim

Plaintiffs, on behalf of a putative class, bring a breach-of-contract claim under Georgia state law against GFA (Count I). [Doc. 25, pp. 75–76]. GFA moves to dismiss the claim, arguing that the alleged employment contracts are not enforceable because they were at-will and, even if they were enforceable contracts, the parties modified them through their course of conduct. [Doc. 36-1, pp. 8–11]. Plaintiffs argue that their offer and support letters created enforceable contracts with definite terms such that they were not at-will employees, that the breach-of-contract claim survives even if they were at-will employees because they can recover for work performed and that whether the contracts were modified is a fact-intensive inquiry that should not be decided at this stage. [Doc. 47, pp. 3–10].

As an initial matter, the Court agrees with GFA that Plaintiffs were at-will employees.¹⁵ “The first rule that courts must apply when construing contracts is to look to the plain meaning of the words of the contract, and it is a cardinal rule of contract construction that a court should, if possible, construe a contract so as not to render any of its provisions meaningless and in a manner that gives effect to all of the contractual terms.” Argo v. G-Tec Servs., LLC, 338 Ga.App. 608, 791 S.E.2d 193, 195 (2016) (internal quotation marks, citations and alteration omitted). Here, the offer letters state that each Plaintiff is offered “an employment with TN Visa opportunity for 12 months” and that the “total duration of this employment will be 12 months.” [Doc. 1-5, p. 2]; [Doc. 1-7, p. 2]. The letters then include the following provision:

‘At-Will’ Employment: At all times while you are employed by the Company, you will be employed on an ‘AT WILL’ basis. This means that your employment will continue if it is mutually agreeable to you and the Company. Either you or the Company may end the employment relationship at any time, with or without cause or advance notice, for any lawful reason. No statement, conduct, policy, or practice can serve to establish any express or implied contract concerning any term of employment.

[Doc. 1-5, p. 2]; [Doc. 1-7, p. 2]. Plaintiffs argue that the definite, 12-month term means they were not at-will employees. [Doc. 47, p. 5]. However, the clear and unambiguous meaning of the offer letters is that Plaintiffs entered into an employment agreement with GFA for a 12-month term but which was terminable by will. When considering an employment contract that provided for a six-month term but reserved the employer's right to terminate the agreement at any time during the term for any or no reason, the Georgia Court of Appeals held that this was “plain and unambiguous language which is susceptible to only one natural meaning. Interpreting the agreement as a whole, it is clear that [the parties] entered into an employment agreement with an initial six-month term which was terminable at will.” Argo, 791 S.E.2d at 195–96. So too, here.

Even though Plaintiffs were at-will employees, this determination does not necessarily mean that the claim must be dismissed. “Plaintiffs may still be entitled to ‘work actually performed under the contract.’ ” de la Fuente v. Columbia Recycling Corp., 704 F. Supp. 3d 1333, 1339 (N.D. Ga. 2023) (quoting Shelnutt v. Mayor, 333 Ga.App. 446, 776 S.E.2d 650 (2015)). GFA argues, however, that Plaintiffs do not allege that they were not paid for their services at the rates set forth in their offer letters. [Doc. 36-1, p. 10]. The Court disagrees. Drawing all reasonable inferences in the light most favorable to Plaintiffs, as the Court must at the motion-to-dismiss stage, Plaintiffs allege that, as a result of GFA's failure to provide the contracted employment, they suffered “wage underpayments,” and they allege that they were paid an hourly rate of approximately $11 per hour, which is less than the annual pay rates of $45,000 for Martinez and $40,000 for Soriano contained in the offer letters. [Doc. 25, pp. 28, 30, 44, 76]; see also [Doc. 1-5, p. 2]; [Doc. 1-7, p. 2]; Ruiz v. Sewon Am., Inc., 766 F. Supp. 3d 1251, 1269 (N.D. Ga. 2025) (denying a motion to dismiss breach-of-contract claims where the plaintiffs alleged that they earned less than the salary set forth in their offer and support letters).

GFA next argues that, to the extent that the offer and support letters are enforceable written contracts, the terms of the employment contracts with Plaintiffs were modified by Plaintiffs continuing to work for GFA after they were assigned duties that differed from those set forth in the contracts. [Doc. 36-1, pp. 10–11]. The Supreme Court of Georgia has held that “parties may modify a contract through course of conduct, and such modifications are prohibited only where the law or contract specifically states otherwise.” Hanham v. Access Mgmt. Grp. L.P., 305 Ga. 414, 825 S.E.2d 217, 220 (2019) (footnote omitted) (“Generally speaking, the terms of a written contract may be modified or changed by a subsequent parol agreement between the parties, where such agreement is founded on sufficient consideration” (internal quotation marks and punctuation omitted)). The Court finds that this fact-intensive argument is better suited to determination at summary judgment or trial, after the parties have the benefit of discovery (and, indeed, both cases cited by GFA to support this argument were decided at later stages—Hanham was decided after a full jury trial and Underwood v. Colony Bank, 362 Ga.App. 548, 869 S.E.2d. 535 (2022) was decided at summary judgment).

GFA also argues that Plaintiffs are not entitled to recover the travel, visa, relocation or any other expenses they seek on their breach-of-contract claim because the offer letters do not include any promise to pay for Plaintiffs’ travel, visa or relocation expenses. [Doc. 36-1, p. 10]. GFA has not shown that their motion to dismiss as to these damages is due to be granted at this early stage. See de la Fuente, 704 F. Supp. 3d at 1339 (finding that at-will employees “may still be entitled to work actually performed under the contract,” such as “costs of traveling to Georgia”) (internal quotation marks omitted); see also O.C.G.A. § 13-6-9 (“Any necessary expense which one of two contracting parties incurs in complying with the contract may be recovered as damages.”).

Accordingly, GFA's motion to dismiss Plaintiff's breach-of-contract claims is DENIED.

3. Title VII and Section 1981 Discrimination Claims

Plaintiffs, on behalf of putative classes, bring claims of race discrimination under Section 1981 (Count III (Martinez) and Count IV (Soriano)) and national origin and race discrimination under Title VII (Count V (Martinez) and Count VI (Soriano)). [Doc. 25, pp. 87–96]. GFA moves to dismiss Plaintiffs’ Title VII and Section 1981 discrimination claims. [Doc. 36-1, pp. 12–21]. Specifically, GFA argues that Plaintiffs cannot base their Section 1981 claims on their national origin or immigration status, id. at 12–15; they cannot base their national origin and race discrimination claims under Title VII on their immigration status, id. at 12–15, 20–21; their race and national origin discrimination claims under Section 1981 and Title VII fail because they have not identified proper comparators, id. at 15–17; they have not sufficiently alleged severe or pervasive harassment such that they can state Title VII hostile work environment claims, id. at 17–18; their discrimination claims cannot be based on having to work required overtime, id. at 18–19); and Martinez fails to plead a plausible constructive discharge claim, id. at 19–20. The Court considers each of these arguments in turn.

a. Standards

As discussed above in regard to Glovis's motion to dismiss, Title VII provides that it is unlawful for an employer “to fail or refuse to hire or to discharge ․ or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, ․ or national origin.” 42 U.S.C. § 2000e-2(a)(1). “[I]n order to state a claim under § 1981, [a plaintiff] must allege (1) intentional race discrimination (2) that caused a contractual injury.” Ziyadat, 3 F.4th at 1296. It is well established in the Eleventh Circuit that Title VII and Section 1981 “have the same requirements of proof and use the same analytical framework.” Standard, 161 F.3d at 1330.

Supreme Court precedent holds that the complaint in an employment discrimination case need not contain specific facts establishing a prima facie case under McDonnell Douglas to survive a motion to dismiss. Swierkiewicz, 534 U.S. at 510–11, 122 S.Ct. 992. Nevertheless, the Eleventh Circuit has since held that complaints alleging discrimination still must meet the plausibility standard of Twombly and Iqbal. Henderson, 436 F. App'x at 937. The complaint must “provide enough factual matter (taken as true) to suggest intentional ․ discrimination.” Surtain, 789 F.3d at 1246 (internal quotation marks omitted).

In this case, therefore, Plaintiffs must allege sufficient non-conclusory factual matter to state plausible claims for relief on their claims of race discrimination under Title VII and Section 1981 and national origin discrimination under Title VII. While Plaintiffs need not establish a prima facie case to survive GFA's motion to dismiss, Swierkiewicz, 534 U.S. at 510–11, 122 S.Ct. 992, it is useful for guidance purposes to note that a plaintiff can establish a prima facie case of race or national origin discrimination by showing that: (1) Plaintiff was a member of a protected class; (2) Plaintiff was subjected to an adverse employment action; (3) Plaintiff's employer treated similarly situated employees outside of her protected class more favorably than she was treated; and (4) Plaintiff was qualified for her position, Burke-Fowler, 447 F.3d at 1323. A plaintiff can establish a convincing mosaic of discrimination by showing “evidence that demonstrates, among other things, (1) suspicious timing, ambiguous statements, and other bits and pieces from which an inference of discriminatory intent might be drawn, (2) systematically better treatment of similarly situated employees, and (3) that the employer's justification is pretextual.” Lewis, 934 F.3d at 1185 (internal quotation marks and alteration omitted).

b. Section 1981 and National Origin/Immigration Status

GFA first argues that, to the extent Plaintiffs premise their Section 1981 claims on their national origin, their citizenship or immigration status, their claims should be dismissed because Section 1981 applies only to claims of race discrimination. [Doc. 36-1, pp. 12–15].

The Supreme Court has held that Section 1981 protects against discrimination based on race as the term “race” was understood in the nineteenth century, when Section 1981 became law. Saint Francis Coll., 481 U.S. at 609–13, 107 S.Ct. 2022.¹⁶ Specifically, “Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics ․ whether or not it would be classified as racial [discrimination] in terms of modern scientific theory.” Id. at 612–13, 107 S.Ct. 2022 (noting that “Mexicans,” among other categories, were referenced as a race during the legislative debates on Section 1981). “In some contexts, national origin discrimination is so closely related to racial discrimination as to be indistinguishable,” and thus, “while discrimination purely on the basis of national origin does not create a cause of action under section 1981, ․ a complaint by Mexican-Americans alleging racial and ethnic discrimination clearly states a cause of action under the statute.” Bullard, 640 F.2d at 634.

Here, Plaintiffs allege that they and other Mexican and Latino workers were paid less and treated differently than non-Latino workers. Martinez alleges that Mexican and Latino workers were required to work the night shift, were assigned cleaning duties, were criticized for working too slowly, were mocked for how they spoke English, were prohibited from speaking Spanish, were required to live in employer-procured housing and use employer-procured transportation, were paid less and were required to work long shifts and excessive mandatory overtime hours. [Doc. 25, pp. 24–26, 28–30].¹⁷ Soriano alleges that Mexican and Latino workers were paid less, were not employed as engineers, were allowed fewer breaks, were prohibited from speaking Spanish and were required to use and pay for employer-procured housing and employer-procured transportation. Id. at 44–47. This is enough, at this stage, to plausibly allege that Plaintiffs were subjected to discriminatory treatment based on their race and to allow their Section 1981 claims to proceed. See, e.g., Guerlin, 2020 WL 510163, at *3 (“[T]he Court will not dismiss the section 1981 claims at this stage because the Plaintiff alleges that the discrimination is based at least partly on race. This argument may be raised against at summary judgment, but, at this stage, the case should not be dismissed.”).

c. Title VII and Immigration Status

To the extent that GFA similarly argues that Plaintiffs’ Title VII race and national origin discrimination claims fail because they are essentially claims of immigration or immigration status discrimination, which is not covered by Title VII, [Doc. 36-1, pp. 12–15, 20–21], this argument also fails.

Title VII does not protect against discrimination based on citizenship, see Espinoza, 414 U.S. at 95, 94 S.Ct. 334 (explaining that “nothing in [Title VII] makes it illegal to discriminate on the basis of citizenship or alienage”), but Plaintiffs allege that their Title VII claims are based on their race and national origin. As set forth above, Martinez alleges that Mexican and Latino workers were exclusively required to work the night shift, were assigned cleaning duties, were criticized for working too slowly, were mocked for how they spoke English, were prohibited from speaking Spanish, were required to live in employer-procured housing and use employer-procured transportation, were paid less and were required to work long shifts and excessive mandatory overtime hours. [Doc. 25, pp. 24–26, 28–30]. Soriano alleges that Mexican and Latino workers were paid less, were not employed as engineers, were allowed fewer breaks, were prohibited from speaking Spanish and were required to use and pay for employer-procured housing and employer-procured transportation. Id. at 44–47. This is enough, at this stage, to plausibly allege that Plaintiffs were subjected to discriminatory treatment based on their race and national origin and to allow their Title VII race and national origin discrimination claims to proceed. See, e.g., Aquino, 739 F. Supp. 3d at 1227–28 (finding that the plaintiffs had sufficiently pled claims of race and national origin discrimination under Title VII where the complaint was “not limited to facts supporting a claim of discrimination based solely on plaintiffs’ immigration status” and contained adequate factual allegations of race and national origin discrimination (internal quotation marks and alteration omitted)).

d. Comparators for Discrimination Claims

GFA next argues that Plaintiffs fail to allege intentional discrimination based on their race or national origin under Title VII or Section 1981 because their conclusory allegations about comparators are not enough to support a reasonable inference of discrimination. [Doc. 36-1, pp. 15–17, 20–21].

In the first amended complaint, Martinez and Soriano summarily allege that GFA treated non-Mexican/non-Latino workers better than Mexican/Latino workers in various ways. See, e.g., [Doc. 25, p. 25] (“On the days when GFA required Plaintiff Martinez and his Mexican/Latino coworkers to clean the warehouse, it allowed the American and non-Latino workers to go home to rest ․”), id. at 28 (“GFA was paying [Martinez] and his Mexican/Latino engineer coworkers less than what it paid American and non-Latino workers with no professional qualifications in similar jobs, or jobs with fewer job responsibilities.”), id. at 44 (“GFA and Glovis were paying [Soriano] and her Mexican/Latino coworkers less than what they paid American and non-Latino workers with similar jobs or jobs with fewer job responsibilities.”), id. at 46 (“American and non-Latino workers working in the same or similar position as her [were allowed] to take more breaks than” Soriano and her Mexican/Latino coworkers.).

The Court agrees with GFA that allegations like these are simply not enough to plausibly allege a proper comparator. See Duckworth, 2024 WL 1377650, at *4 (finding that the plaintiff's allegations that certain female employees “in the same position” as the plaintiff were treated more favorably did “not come close to indicating the existence of another employee ‘similarly situated in all material respects’ ”); Walton, 2022 WL 3337405, at *4 (finding that the plaintiff's allegations that a woman of a different race and “less experience” was treated more favorably were not sufficient to plausibly allege a valid comparator).

However, the failure to allege a comparator does not preclude Plaintiffs’ claims because they allege other facts to plausibly suggest that they were discriminated against based on their race or national origin under a convincing mosaic theory. See Tynes, 88 F.4th at 946 & n.2 (reiterating that a plaintiff's failure to produce a comparator—even at summary judgment or trial—“does not necessarily doom the plaintiff's case” and recognizing that the convincing mosaic standard can be of particular significance where a plaintiff cannot identify a comparator). Here, Martinez alleges that his managers harassed and mocked him about his ability to speak English, his manager prohibited him from speaking Spanish and management told him that he should go back to Mexico if he did not like his treatment after he complained that GFA treated Mexican/Latino workers differently than American and non-Latino workers. [Doc. 25, pp. 25, 29, 31]. Soriano alleges that her immediate supervisor confirmed that non-Mexican/non-Latino workers were paid more than Mexican/Latino workers and one of her managers told her to stop speaking Spanish and that it was “sickening” to hear them speak Spanish. Id. at 45–46. These allegations, taken as true for the purposes of GFA's motion to dismiss, plausibly suggest discrimination based on Plaintiffs’ race or national origin, even without considering Plaintiffs’ comparator allegations.

e. Title VII Hostile Work Environment Claim

GFA next argues that Plaintiffs’ hostile work environment claims, alleged as part of their Counts V and VI claims of race and national origin discrimination under Title VII,¹⁸ are due to be dismissed. [Doc. 36-1, pp. 17–18]. To state a claim for discriminatory hostile work environment based on race or national origin, a plaintiff must plausibly allege:

(1) that [she] is a member of a protected class; (2) that [she] was subjected to unwelcome ․ harassment; (3) that the harassment was based on [her protected category]; (4) that the harassment was severe or pervasive enough to alter the terms and conditions of [her] employment and create a discriminatorily abusive working environment; and (5) that the employer is responsible for the environment under a theory of either vicarious or direct liability.

Adams, 754 F.3d at 1248–49. “And the complained of behavior must result in an environment that a reasonable person would find hostile or abusive and an environment that the victim subjectively perceives to be hostile.” Malone, 858 F. App'x at 302 (internal quotation marks omitted) (citing Miller, 277 F.3d at 1276). GFA argues that Plaintiffs have not alleged that they experienced sufficiently severe or pervasive harassment based on their race or national origin. [Doc. 36-1, pp. 17–18]. The Court agrees.

“[O]nly conduct that is ‘based on’ a protected category, such as race, may be considered in a hostile work environment analysis.” Jones, 683 F.3d at 1297. Soriano argues that she was forced to work in a role different than what she was promised; her manager told her to stop speaking Spanish and repeatedly said that it was “sickening” to hear her speak in Spanish; she was forced to work long, improperly compensated overtime; and she was forced to live in substandard, cockroach-infested housing.¹⁹ [Doc. 25, pp. 39, 46–47]; [Doc. 47, p. 21]. Martinez alleges that he was forced to work in a role different than what he was promised; he was treated differently than American and non-Latino coworkers by being required to work the night shift and clean the warehouse and by being paid less; his manager told him that he worked too slowly, mocked his ability to speak English and prohibited him from speaking Spanish; he was forced to work long, improperly compensated overtime; and he was told to go back to Mexico when he complained. [Doc. 25, pp. 22–23, 24–26, 29, 31]; [Doc. 47, pp. 21–22].

Plaintiffs have failed to allege that this behavior was severe or pervasive. In evaluating the objective severity of the complained of behavior, the Eleventh Circuit has considered, among other factors: “(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance.” Miller, 277 F.3d at 1276. “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.” Harris, 510 U.S. at 21, 114 S.Ct. 367 (internal quotation marks and citations omitted); see also Miller, 277 F.3d at 1276 (“[I]t is repeated incidents of verbal harassment that continue despite the employee's objections that are indicative of a hostile work environment and not simply some magic number of racial or ethnic insults.” (internal quotation marks and alterations omitted)).

The majority of the conduct Plaintiffs allege to support their hostile work environment claims is not the type of harassing behavior typically considered for such claims, and Plaintiffs cite no case law to support their argument that the condition of Soriano's employer-procured housing, a change in Plaintiffs’ expected job role or being required to work overtime constitutes harassment in the workplace that contributes to a hostile work environment. And there are simply no factual allegations to support an inference that Plaintiffs’ supervisors’ prohibition on speaking Spanish, repeated comments that hearing Soriano speaking Spanish was “sickening” or that Martinez could return to Mexico amounts to the type of severe or pervasive conduct necessary to support a hostile work environment. See, e.g., Banks, 616 F. Supp. 3d at 1321–22 (granting a motion to dismiss and finding that “calling [the plaintiff] a liar, referring to her as ‘you people,’ ․ accusing her of poor performance, and yelling at her—falls short of creating a hostile work environment”); Evans, 2016 WL 6824422, at *5 (finding that the plaintiff failed to state a plausible claim for hostile work environment where she alleged two instances of racially offensive statements). Therefore, GFA's motion to dismiss is GRANTED as to Plaintiffs’ hostile work environment claims contained in Counts V and VI.

f. Required Overtime as an Adverse Action

GFA argues that, to the extent that Plaintiffs’ discrimination claims are based on having to work overtime as an adverse employment action, such claims fail as a matter of law. [Doc. 36-1, pp. 18–19]. GFA cites to Aquino, where Judge Batten concluded that mandatory overtime, even when coupled with threats of termination and deportation, is not an adverse employment action for purposes of Title VII and Section 1981 discrimination claims. 739 F. Supp. 3d at 1198–99. In response, Plaintiffs argue that whether overtime constitutes an adverse action should be evaluated on a record developed after discovery and that the Supreme Court's recent decision in Muldrow, 601 U.S. 346, 144 S.Ct. 967, calls into question the reasoning of cases relied upon in Aquino. [Doc. 47, pp. 23–25]. The Court finds Plaintiffs’ argument persuasive.

Aquino determined that mandatory overtime was not an adverse employment action, meaning something that caused “a serious and material change in the terms, conditions, or privileges of employment.” 739 F. Supp. 3d at 1198–99 (internal quotation marks omitted). However, the Supreme Court in Muldrow clarified that a plaintiff must “show some harm respecting an identifiable term or condition of employment” to make out a Title VII discrimination claim, but the plaintiff does not have to show that the harm was “significant ․ [o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” 601 U.S. at 354–55, 144 S.Ct. 967 (internal quotation marks omitted) (noting that whether the harm of an alleged adverse action “is significant ․ can lie in the eye of the beholder—and can disregard varied kinds of disadvantage”). Although Aquino was decided after the Supreme Court's decision in Muldrow, Aquino does not mention or consider Muldrow ²⁰ and relies on case law that an adverse action must “substantially” alter the terms and conditions of the plaintiff's employment (or constitute “a serious and material change” in those terms and conditions), which appears to be the wrong standard after Muldrow.

Here, Plaintiffs allege that they were required to work excessive overtime and were not paid properly at an overtime rate. [Doc. 25, pp. 26–27, 29, 47–49]. Under Muldrow, Plaintiffs “need show only some injury respecting [their] employment terms or conditions ․ [the adverse action] must have left [them] worse off, but need not have left [them] significantly so.” 601 U.S. at 359, 144 S.Ct. 967. Plaintiffs’ allegations, if supported after discovery, could plausibly meet that test. Accordingly, GFA's motion to dismiss Plaintiffs’ Title VII and Section 1981 discrimination claims based on having to work mandatory overtime is DENIED.

g. Constructive Discharge

GFA summarily argues that Martinez fails to plausibly allege that he was constructively discharged. [Doc. 36-1, pp. 19–20]. “Constructive discharge occurs when an employer deliberately makes an employee's working conditions intolerable and thereby forces him to quit his job.” Bryant, 575 F.3d at 1298 (internal quotation marks omitted). “A plaintiff must show the work environment and conditions of employment were so unbearable that a reasonable person in that person's position would be compelled to resign.” Id. (internal quotation marks omitted). “Establishing a constructive discharge claim is a more onerous task than establishing a hostile work environment claim.” Id. (holding so at the summary judgment stage of proceedings).

Here, both GFA and Martinez cite to Bryant, but neither party cites any other case law to elucidate whether Martinez's allegations of race and national origin discrimination plausibly allege constructive discharge. [Doc. 36-1, pp. 19–20]; [Doc. 47, p. 26], [Doc. 48, pp. 16–17]. Though the Eleventh Circuit states in Bryant that it is “a more onerous task” to establish constructive discharge than a hostile work environment, 575 F.3d at 1298–99, it seems plausible to the Court that, while Martinez's allegations are not the type of harassing behavior typically considered for hostile work environment claims, the allegations could plausibly allege constructive discharge based on the change in Martinez's expected job role and compensation, being required to work excessive overtime, being required to live in and pay for employer-procured housing and transportation, being told to return to Mexico when he complained and the fact that all of these actions were allegedly taken in a discriminatory manner.

Accordingly, in light of the limited briefing on this issue by the parties, the early stage of this case and the fact-intensive nature of the inquiry GFA's motion to dismiss Martinez's Title VII and Section 1981 discrimination claims based on constructive discharge is DENIED. This argument, like the others on which the motions to dismiss fail, remains in play for summary judgment when the record will be more developed.

4. Title VII Retaliation

Title VII, in addition to prohibiting intentional discrimination, also prohibits retaliation against an employee who has “opposed any practice made an unlawful employment practice” by Title VII (the “opposition clause”) or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII (the “participation clause”). 42 U.S.C. § 2000e-3(a); Ceus, 803 F. App'x at 244. Martinez brings an individual claim of Title VII retaliation (Count XI). [Doc. 25, p. 107]. GFA argues that this claim should be dismissed because Martinez failed to exhaust his administrative remedies and because he has not plausibly alleged retaliation. [Doc. 36-1, pp. 25–32]. The Court agrees that Martinez failed to administratively exhaust his retaliation claim.

“[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.” Patterson v. Ga. Pac., LLC, 38 F.4th 1336, 1345 (11th Cir. 2022) (internal quotation marks omitted). “Judicial claims are proper if they amplify, clarify, or more clearly focus the allegations in the EEOC complaint, but allegations of new acts of discrimination are inappropriate.” Thomas v. Mia. Dade Pub. Health Tr., 369 F. App'x 19, 22 (11th Cir. 2010) (internal quotation marks and alteration omitted). The Eleventh Circuit has “noted that the scope of an EEOC complaint should not be strictly interpreted.” Gregory v. Ga. Dep't of Hum. Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (internal quotation marks omitted); see also Patterson, 38 F.4th at 1345 (“We do not strictly construe EEOC charges, and we are reluctant to allow procedural technicalities to bar Title VII claims.”).

Here, Martinez failed to administratively exhaust his retaliation claim based on any internal grievances or complaints that he alleges in the first amended complaint because those internal complaints, the resulting threats he alleges from GFA and his December 4, 2022, alleged constructive discharge all occurred prior to when he filed an EEOC charge on May 31, 2023—but were not included in the charge. See Thomas, 369 F. App'x at 22–23 (“[A]ny ․ acts of retaliation that occurred prior to the date of the EEOC charge that were not included in the charge were not exhausted and could not be considered by the district court.”); see also Croley v. United Airlines, Inc., No. 17-CV-4722, 2018 WL 11486862, at *7–9 (N.D. Ga. Apr. 24, 2018) (finding that the plaintiff's “retaliation claim based upon her internal complaints and any supposed retaliatory conduct that occurred prior” to the filing of her EEOC charges “is not administratively exhausted and is barred as such”), R. & R. adopted, 2018 WL 11486859 (N.D. Ga. June 13, 2018). In his charge, Martinez does not check the box for retaliation, he does not mention retaliation, and he does not state that he complained to his supervisors (or took any other actions that could constitute protected activity)—all despite filing the charge after those alleged activities took place. [Doc. 36-2].²¹ An EEOC investigation into retaliation could not “reasonably be expected to grow out of [Martinez's] charge of discrimination.” Patterson, 38 F.4th at 1345 (internal quotation marks omitted).

GFA's motion to dismiss is GRANTED as to Martinez's Title VII retaliation claim (Count XI).²²

5. Filing False Information Returns

Plaintiffs bring a claim of filing false information returns in violation of 26 U.S.C. § 7434 (Count VII), based on GFA illegally deducting housing and transportation costs from their wages without correctly noting that deduction in payroll records and Plaintiffs’ W-2s. [Doc. 25, pp. 64–65, 97]. GFA first argues that this claim should be dismissed because Plaintiffs lack standing, maintaining that they do not plausibly allege a concrete injury. [Doc. 36-1, pp. 21–25].

26 U.S.C. § 7434 provides, in relevant part: “If any person willfully files a fraudulent information return with respect to payments purported to be made to any other person, such other person may bring a civil action for damages against the person so filing such return.” 26 U.S.C. § 7434(a). And to have standing to bring a claim, Plaintiffs must have “suffered an injury in fact.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). That is, “a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Id. at 339, 136 S.Ct. 1540 (internal quotation marks omitted). GFA argues, based on Aquino, that Plaintiffs lack standing because their allegations of “economic damages” do not allege a concrete injury. See [Doc. 36-1, pp. 23–24] (citing Aquino, 739 F. Supp. 3d at 1170–72 (finding that the plaintiffs alleged only “the risk of real harm (i.e., paying the future costs associated with remedying their taxes),” which did not plausibly allege a substantial risk of real harm)). Plaintiffs argue that their claims are distinguishable because they allege that GFA overreported their wages (in other words, that they paid taxes on income not received), whereas Aquino and the other cases cited by GFA involve underreporting of income. [Doc. 47, pp. 29–30].

Plaintiffs cite to Eisele v. Home Depot USA, Inc., which explains the difference:

All of the cases that Eisele relies on, however, involve underreporting of wages on W-2s or underreporting of other employment contributions rather than circumstances like those here in which an individual's wages or other payments were overreported. See, e.g., Queen[v. Zefco Inc.], 2020 WL 9350977, at *2 [D.S.C. 2020] (“Plaintiff asserts that Defendants willfully filed false W2 information returns understating the wages earned by their employees”); Aquino v. Mobis Ala., LLC, No. 3:22-CV-145-TCB [739 F.Supp.3d 1152, 1170], 2024 WL 2764047, at *7 (N.D. Ga. May 28, 2024) (“Plaintiffs allege that Allswell attempted to defraud the IRS by willfully underreporting some of the Plaintiffs’ and other TN visa holders’ taxable wages”) ․

In these cases the courts concluded that “because filing fraudulent information returns underreporting an individual's income was not the harm Congress enacted § 7434 to prevent, [those plaintiffs,] relying solely on violation of [that] statute [could not] show a concrete injury in fact and lack[ed] standing to sue.” Balle-Tun v. Zeng & Wong, Inc., No. 21-CV-03106-NRN, 2022 WL 1521767, at *6 (D. Colo. May 13, 2022)․

The legislative history of § 7434 and the conclusion in Queen and other cases indicates that the statutory violation that Eisele alleges here: willfully and fraudulently overreporting of her wages, is the type of harm that Congress sought to prevent in enacting § 7434 and that the inconvenience and possible “significant personal loss” resulting from the IRS receiving fraudulent information on a plaintiff's return is a concrete injury. Under the circumstances here, therefore, the Court concludes the statutory violation alone is sufficient to establish a concrete injury-in-fact for Article III standing.

No. 24-CV-00764, 2024 WL 4164547, at *4–5 (D. Or. Sept. 12, 2024). The Court finds Eisele persuasive and concludes that Plaintiffs have standing to pursue their claim for filing false information returns where the allegations center on the notion that GFA overreported their wages. [Doc. 25, p. 64].

Next, GFA argues that Plaintiffs do not allege that GFA inaccurately stated on their paystubs or W-2 forms the amount of their gross wages or the amounts withheld for federal income tax, state income tax, Social Security tax or Medicare tax. [Doc. 36-1, p. 24]. Rather, it contends that Plaintiffs simply allege that the paystubs and W-2 forms did not properly itemize the after-tax deduction of $100 per week for housing and transportation. Id. at 24–25. However, Plaintiffs allege the following:

• Defendant GFA intentionally submitted false information returns that over-reported the wages Plaintiffs and other similarly situated workers earned in quarterly and annual information returns GFA filed with the U.S. Internal Revenue Service (“IRS”), including Plaintiffs’ and other similarly situated workers’ W-2 forms;

• The over-reporting of Plaintiffs’ and other similarly situated workers’ wages resulted from the illegal off-the-books kickbacks the workers were required to pay to GFA each week for housing and transportation;

• In January 2023, GFA issued fraudulent W-2 forms on behalf of TN visa holders over-reporting their taxable earnings;

• In January 2024, GFA issued fraudulent W-2 forms on behalf of Plaintiffs and other TN visa holders over-reporting their taxable earnings;

• GFA, through the RICO Enterprises, similarly misrepresented Plaintiffs and other TN visa holders’ wages in quarterly returns and other filings submitted to the Georgia Department of Revenue in 2023 and 2024;

• As a consequence of the false information returns, Plaintiffs and other TN visa holders suffered economic damages, including payment of taxes that exceeded their tax liability and preparer and accountant fees to correct the misrepresentations; and

• As set forth above, GFA provided the IRS false information regarding Plaintiffs’ and other GFA Class members’ Social Security wages on Defendants’ quarterly and annual information returns, including on W-2 Forms, in an attempt to defraud the IRS.

[Doc. 24, pp. 64, 97]. Though the Court has real doubts as to the ultimate viability of this claim, at the motion-to-dismiss stage, Plaintiffs have plausibly alleged that GFA willfully filed false information returns overreporting their wages. Accordingly, GFA's motion to dismiss is DENIED as to Plaintiffs’ false information returns claim.

6. FLSA Minimum Wage and Overtime Claims

Each Plaintiff, on behalf of a putative class, brings claims of violations of the FLSA (Counts XII (Martinez) and XIII (Soriano)) against GFA. [Doc. 25, pp. 108–14]. GFA moves to dismiss Plaintiffs’ FLSA minimum wage and overtime claims based on the weekly deductions from their wages for housing and transportation,²³ arguing that, pursuant to 20 C.F.R. §§ 531.36 and 531.37, even if Plaintiffs plausibly allege an improper deduction for housing and transportation, that deduction does not violate the FLSA if their regular rate minus the deduction is still higher than minimum wage. [Doc. 36-1, pp. 32–36]. The Court agrees.

Under the FLSA, the legal standard that applies to deductions turns on whether the deduction is for an item that is classified as being “board, lodging, or other facilities.” 29 U.S.C. § 203(m).²⁴ Specifically, § 203(m) states that a “wage paid to any employee includes the reasonable cost ․ to the employer of furnishing such employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employee.” Id. “Accordingly, the employer lawfully may deduct from an employee's pay the reasonable cost of employer provided housing” and meals, even if that deduction results in the employee's cash pay falling below the statutory minimum. Ramos-Barrientos, 661 F.3d at 595 (internal quotation marks and citations omitted). But “deductions for items that do not qualify as Section 203(m) facilities may not cut into the minimum or overtime wages required to be paid” under the FLSA. Lima, 2022 WL 3051227, at *4 (internal quotation marks omitted).

a. Minimum Wage

Pursuant to 29 C.F.R. § 531.36, for nonovertime weeks:

where an employee is employed at a rate in excess of the applicable minimum wage and during a particular workweek works 40 hours for which the employee receives at least the minimum wage free and clear, the employer having deducted from wages for facilities furnished, whether such deduction meets the requirement of section 3(m) and subpart B of this part need not be considered, since the employee is still receiving, after the deduction has been made, a cash wage of at least the minimum wage for each hour worked.

29 C.F.R. § 531.36(a). The federal minimum wage is $7.25 per hour. See id. § 206(a)(1)(C). Martinez alleges that he earned $11 per hour after deductions and that GFA deducted $100 per week from his pay for employer-procured housing and transportation. [Doc. 25, pp. 26–28]. Soriano alleges that she earned $11 per hour before any deductions and that Defendants deducted a total of $110 per week to pay for employer-procured housing and transportation. Id. at 44, 47.

In a 40-hour work week at a minimum wage rate of $7.25 per hour, Plaintiffs would have been entitled to a gross pay of $290/week (i.e., $7.25 x 40=$290). At their actual pay rate of $11 per hour,²⁵ Plaintiffs received gross pay of $440/week (i.e., $11 x 40= $440). After the deduction for housing and transportation, each Plaintiff still received wages in excess of the minimum wage. See 29 C.F.R. § 531.36(a) (“[W]hether [the employer's deduction] meets the requirements of section 3(m) and subpart B of this part need not be considered, since the employee is still receiving, after the deduction has been made, a cash wage of at least the minimum wage for each hour worked.”). Accordingly, Plaintiffs have not alleged a plausible minimum wage claim based on the weekly deductions from their wages for housing and transportation, and GFA's motion to dismiss is GRANTED as to these claims.

b. Overtime

As to Plaintiffs’ overtime claims, “[p]ursuant to 29 C.F.R. § 531.37(a), [an employer] could make deductions on the same basis in an overtime work week where [an employee] worked more than 40 hours in a week, provided that the amount deducted did not exceed the amount that could be deducted in a non-overtime week where [the employee] only worked 40 hours in a week.” Lima, 2022 WL 3051227, at *4 (internal quotation marks omitted). In Lima, the court found, at summary judgment, that the plaintiffs’ FLSA claim for failure to pay overtime failed as a matter of law because the employer's allegedly improper deductions ²⁶ “did not reduce Plaintiffs’ wages below the minimum wage or reduce their overtime compensation.” 2022 WL 3051227, at *3. The court in Lima considered the issue as follows:

Plaintiffs filed this suit against Defendants under the collective action provisions of the FLSA. Plaintiffs allege that Defendant's policy of mandating $15 be deducted from employees’ paychecks and held in an escrow account to cover the cost of licenses, training, certificates, and other miscellaneous items violates the overtime provisions of the FLSA when applied to employees who work more than 40 hours per week. Plaintiffs reason that Defendants’ policy deprives the employees of their overtime pay․ Specifically, Plaintiffs argue that the deductions constitute illegal kickbacks under 29 C.F.R. § 531.35, which relates to deductions taken from employee's pay for non-Section 203(m) items such as tools of the trade required to perform the job. Plaintiffs’ argument fails because the deductions at issue did not cause Plaintiffs’ pay to fall below the minimum wage of $7.25 per hour in any week or reduce their overtime compensation. See Lira v. Arrow Air., Inc., Civ. Act. No. 05-23273, 2006 WL 8433511, at *2, 2006 U.S. Dist. LEXIS 94935, at *5 (S.D. Fla. Apr. 18, 2006) (finding that deductions for uniforms did not violate the FLSA because the plaintiff's wages were always above the minimum wage for all hours worked). Plaintiffs here in the instant case were paid above the minimum wage.

Defendant contends that Plaintiffs’ straight time wage exceeded the amount they would have been due if they were paid at the minimum wage rate of $7.25 per hour. In a 40 hour work week at a minimum wage rate of $7.25/hour, Plaintiffs would have been entitled to a gross pay of $290/week (i.e. $7.25 x 40 = $290). Here, Plaintiffs were paid at an hourly rate well over the federal minimum wage of $7.25. Lima was paid $22.5/hour and Grace was paid $16/hour for all straight time work. At these rates, in a 40 hour work week Lima received a gross pay of $900/week (i.e. $22.5 x 40 = $900) and Grace received a gross pay of $640/week (i.e. $16 x 40 = $640). Accordingly, Lima's weekly pay exceeded the minimum wage weekly pay by $610 (i.e. $900 - $290 = $610) and Grace's weekly pay exceeded the minimum wage weekly pay by $350 (i.e. $640 - $290 = $350). Therefore, Plaintiffs’ pay for straight time work had a $610 and $350 buffer from which deductions could be made without reducing Plaintiffs’ pay below the minimum wage and without reducing any overtime compensation. It follows that there is no genuine issue of material fact as to whether [the employer's] policy violates FLSA.

2022 WL 3051227, at *5. The Court finds Lima persuasive and analogous to the instant case.

Applying the analysis in Lima, in a 40-hour work week at a minimum wage rate of $7.25 per hour, Plaintiffs would have been entitled to a gross pay of $290/week (i.e., $7.25 x 40=$290). See 2022 WL 3051227, at *5. Plaintiffs allege that they were paid $11 per hour, which is well over the federal minimum wage of $7.25. [Doc. 25, pp. 28, 44]. Therefore, in a 40-hour workweek, Plaintiffs received gross pay of $440/week (i.e., $11 x 40= $440). Accordingly, Plaintiffs’ weekly pay exceeded the minimum wage weekly pay by $150 (i.e., $440 - $290 = $150). Therefore, Plaintiffs’ pay for straight-time work had a $150 buffer “from which deductions could be made without reducing Plaintiffs’ pay below the minimum wage and without reducing any overtime compensation.” Lima, 2022 WL 3051227, at *5. Soriano alleges that Defendants deducted $100 per week from her pay for housing and transportation costs and required her to pay $10 per week in cash for gas to the van driver (for a total of $110 per week). [Doc. 25, p. 47]. Martinez alleges that GFA deducted $100 per week from his pay for employer-procured housing and transportation. Id. at 26–27. These deductions of $110 per week for Soriano and $100 per week for Martinez do not exceed the $150 buffer from which deductions could be made. Thus, Defendants’ allegedly unlawful deductions do not violate the FLSA because the deductions do not reduce Plaintiffs’ pay below the minimum wage or reduce overtime compensation. See Lima, 2022 WL 3051227, at *5. Accordingly, GFA's motion to dismiss Plaintiffs’ FLSA overtime claims based on unlawful deductions is GRANTED.

7. FLSA Retaliation Claim

Martinez brings an individual claim for FLSA retaliation (Count XIV), [Doc. 25, pp. 115], which GFA moves to dismiss for failure to state a claim, [Doc. 36-1, pp. 36–40].

The FLSA protects persons against retaliation for asserting their rights under the statute. See 29 U.S.C. § 215(a)(3) (prohibiting the discharge of or discrimination against “any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter”). A prima facie case of FLSA retaliation requires a plaintiff to show that “(1) she engaged in activity protected under the act; (2) she subsequently suffered adverse action by the employer; and (3) a causal connection existed between her activity and the adverse action.” Smith v. Haynes & Haynes P.C., 940 F.3d 635, 648 (11th Cir. 2019) (alterations omitted). GFA argues that Martinez has failed to plausibly allege any of the three elements of an FLSA retaliation claim, that he has not alleged lost wages because of the alleged retaliation and that he cannot recover emotional distress damages on an FLSA retaliation claim. [Doc. 36-1, pp. 37–40].

As an initial matter, Martinez responds to GFA's motion to dismiss this claim with a single brief paragraph:

The Amended Complaint alleges that Plaintiff Martin complained about the calculation of his overtime wages which was a clear assertion of his rights for proper payment of overtime under the FLSA. (Doc. 25 ¶¶ 148-149). After he raised these FLSA complaints, his work assignments became more numerous and arduous, and he was required to work faster to complete them. (Doc. 25 ¶ 149). Such allegations plausibly allege retaliation under the FLSA.

[Doc. 47, p. 34]. Martinez entirely fails to respond to GFA's arguments that his FLSA retaliation claim should be dismissed because he has not plausibly alleged causation or recoverable damages, see id., indicating that he has abandoned his FLSA retaliation claim, see SIS, LLC v. Stoneridge Holdings, Inc., No. 17-CV-1816, 2019 WL 8277244, at *6 (N.D. Ga. Feb. 5, 2019) (noting that “[w]hen an argument is raised that a claim is subject to dismissal, and the non-moving party fails to respond to such an argument, such claims are deemed abandoned” and collecting cases).

Nevertheless, to the extent that Martinez did not abandon his FLSA retaliation claim, the Court agrees with GFA that it is due to be dismissed because Martinez does not plausibly allege causation.²⁷

“To demonstrate causation, ‘a plaintiff must show that the decision-makers were aware of the protected conduct, and that the protected activity and the adverse actions were not wholly unrelated.’ ” Davidson v. Patel, No. 22-CV-3934, 2023 WL 10406725, at *5 & n.3 (N.D. Ga. Sept. 30, 2023) (citing Eleventh Circuit caselaw addressing retaliation and discrimination claims outside the FLSA context and noting that “courts analyze FLSA retaliation claims using the familiar McDonnell Douglas framework applied to retaliation claims brought under Title VII, the ADEA, and the ADA.”). “The burden of causation can be met by showing close temporal proximity between the statutorily protected activity and the adverse employment action.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). However, “[a]t a minimum, a plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took adverse employment action.” Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999) (internal quotation marks omitted). This awareness may be established by circumstantial evidence. Id.

Here, Martinez alleges that he began to complain to GFA management about the calculation of overtime pay and that his pay was incorrect in June of 2022. [Doc. 25, p. 30]. Some unknown amount of time later, “his work assignments became more numerous and arduous, and he was required to work faster to complete them.” Id. It is not clear how close the temporal proximity was between Martinez's complaints in June of 2022 and his additional work assignments. More significantly, Martinez has not alleged facts indicating who made the decision to take adverse action against him or whether that person was even aware of his complaints. Martinez offers no response to this argument in his response brief. Therefore, the Court finds that Martinez has not plausibly alleged causation between his internal complaints and the alleged adverse action of being given more work that was more difficult.

GFA's motion to dismiss Martinez's FLSA retaliation claim (Count XIV) is GRANTED.

8. Class Action Claims

Plaintiffs bring multiple claims on behalf of purported classes. As explained above in Parts III.C.3.e and III.C.6, Plaintiffs’ hostile work environment claims contained in their Title VII claims (parts of Counts V and VI) and their FLSA minimum wage and overtime claims based on unlawful deductions (parts of Counts XII and XIII) are dismissed. As such, the related class claims are also dismissed. See Aquino, 739 F. Supp. 3d at 1199 (dismissing the related class claims where the court dismissed the plaintiffs’ claims because “[w]hen a named plaintiff has no cognizable claim for relief, she cannot represent others who may have such a claim, and her bid to serve as a class representative must fail” (internal quotation marks and citation omitted)).

IV. MOTION TO SEVER AND TRANSFER VENUE

In addition to its motion to dismiss, [Doc. 37], Glovis also filed a motion to sever, transfer venue and stay, [Doc. 38].²⁸ In the motion to sever and transfer venue, Glovis argues that Plaintiffs’ claims are improperly joined because they do not arise out of the same transaction or occurrence and because there is no common question of law or fact. [Doc. 38, pp. 6–10]. Glovis asserts that severing each Plaintiff's claims will promote the possibility of settlement, serve judicial economy and avoid prejudice and confusion. Id. at 10–12. Glovis argues that, if Soriano's claims are severed, her claims should be transferred to the Newnan Division of this Court, which is where Glovis is located and where the alleged improper actions occurred. Id. at 12–14.

In response, Plaintiffs argue that the motion to sever should be denied because Defendants are properly joined and, even if Plaintiffs’ claims were severed, Glovis would still be a defendant in both lawsuits, as both Martinez and Soriano make RICO claims against both Glovis and GFA related to the same scheme of recruiting Mexican engineers by offering engineering/technical jobs but then placing the employees in manual labor positions. [Doc. 44, pp. 2–8]. Plaintiffs further argue that all other considerations support keeping the claims in one action—it would be inefficient, they argue, to force Plaintiffs to litigate and engage in extensive discovery about the same RICO claims involving the same alleged enterprises in two separate lawsuits. Id. at 8–11. Plaintiffs note that Glovis's request to transfer is conditioned on the grant of the motion to sever; because the motion to sever is due to be denied, Plaintiffs argue that the motion to transfer should be denied as well. Id. at 11.

Glovis filed a reply brief, [Doc. 45], and the motion is now before the Court for consideration.

Federal Rule of Civil Procedure 21 provides that “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party” and “may also sever any claim against a party.” Fed. R. Civ. P. 21. When deciding a motion to sever, courts are also guided by Federal Rules of Civil Procedure 20 and 42. See In re Stand ‘n Seal, Prods. Liab. Litig., No. 07-CV-686, 2009 WL 2224185, at *1 (N.D. Ga. July 21, 2009). Rule 20 provides that “[p]ersons may join in one action as plaintiffs if ․ they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and ․ any question of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a)(1). Courts “liberally interpret Rule 20” because its “central purpose ․ is to promote trial convenience and expedite the resolution of disputes.” In re Stand ‘n Seal, 2009 WL 2224185, at *1 (internal quotation marks omitted). Rule 20 “may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship.” Id. (internal quotation marks omitted). However, even if joinder is proper, “[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.” Fed. R. Civ. P. 42(b). And to that end, courts have considered “whether severance would facilitate settlement or judicial economy, and the relative prejudice to each side if the claim is severed.” Breaking Glass Pictures, LLC v. Does 1-99, No. 13-CV-882, 2013 WL 8336085, at *3 (N.D. Ga. Apr. 12, 2013) (internal quotation marks omitted).

Here, Plaintiffs are properly joined under Rule 20. Both Soriano and Martinez bring RICO claims against Glovis and GFA based on their alleged participation in the same RICO enterprises. [Doc. 25, pp. 8–9, 57–61, 76–86]. The RICO allegations relate to the same “bait-and-switch” scheme where Plaintiffs allege Defendants recruited Mexican engineers with the promise of engineering and technical jobs but then placed them in manual labor positions after they secured TN visas and came to the United States. As to the first requirement under Rule 20(a)(1), accepting all of Plaintiffs’ allegations as true, the Plaintiffs’ claims stem from the same core allegations that they were subject to a joint scheme. See Alexander v. Fulton County, 207 F.3d 1303, 1323–24 (11th Cir. 2000) (holding that the plaintiffs’ allegations that they were subject to a systemic pattern or practice of discrimination satisfied Rule 20(a)(1)(A)’s requirement that they assert a right to relief arising out of the same transaction or occurrence), overruled on other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en banc).

Regarding the second requirement of Rule 20, there are clearly common questions of law and fact as to whether Defendants entered into the alleged RICO enterprises, conspired to engage in the bait-and-switch scheme and committed the predicate acts underlying the RICO claims. See Fed. R. Civ. P. 20(a)(1)(B). Glovis does not address the RICO claims head-on in its motion to sever—instead, Glovis argues that “[t]he only claims against [it] are from Soriano.” [Doc. 45, p. 2]. This is simply not the case—both Martinez and Soriano bring Georgia RICO claims against both Glovis and GFA. [Doc. 25, pp. 76–86]. And as to judicial economy and prejudice, the Court sees no harm in allowing Plaintiffs to proceed jointly in discovery, whereas severance would result in Glovis and GFA being required to respond to extensive RICO discovery in two cases rather than one consolidated action. “It may be, upon development of the evidence in this case, that it ultimately appears that the claims of the [two] plaintiffs should be severed for trial. At this point in the proceedings, however, judicial economy is served by joinder, rather than proceeding in duplicative suits with duplicative discovery.” Weatherly v. Ala. State Univ., No. 10-CV-192, 2010 WL 1753190, at *3 (M.D. Ala. Apr. 30, 2010).²⁹

As such, the Court DENIES WITHOUT PREJUDICE the motion to sever, [Doc. 38]. Glovis may re-raise this issue at an appropriate time before trial, should it choose to do so.³⁰ As to the motion to transfer, Glovis argues only that “if Soriano's claims are severed, they should be transferred to the Newnan Division.” [Doc. 38, p. 14] (emphasis added). Because the motion to sever is denied, the Court also DENIES WITHOUT PREJUDICE the motion to transfer. [Doc. 38].

V. CONCLUSION

For the reasons set forth above, GFA's motion to stay discovery and local rule deadlines, [Doc. 26], is DENIED AS MOOT and Glovis's motion to stay, [Doc. 38], is GRANTED. Glovis's motion to sever and transfer venue, [Doc. 38], is DENIED WITHOUT PREJUDICE.

Glovis's motion to dismiss, [Doc. 37], is GRANTED IN PART AND DENIED IN PART. Specifically, it is GRANTED as to Soriano's hostile work environment claim contained in her Title VII discrimination claim (part of Count VI), her FLSA overtime claim based on unlawful deductions (part of Count XIII) and the putative class claims associated with these two claims. Glovis's motion to dismiss is otherwise DENIED.

GFA's partial motion to dismiss, [Doc. 36], is GRANTED IN PART AND DENIED IN PART. Specifically, it is GRANTED as to Plaintiffs’ hostile work environment claims contained in their Title VII discrimination claims (parts of Counts V and VI), Plaintiffs’ FLSA overtime and minimum wage claims based on unlawful deductions (parts of Counts XII and XIII) and the putative class claims associated with these two claims. It is also GRANTED as to Martinez's individual claim for Title VII retaliation (Count XI) and as to Martinez's individual claim for FLSA retaliation (Count XIV). GFA's motion to dismiss is otherwise DENIED.

IT IS SO ORDERED this 28th day of August, 2025.

FOOTNOTES

1.   GFA notes that the parties had already conducted their Rule 26(f) conference on October 15, 2024. [Doc. 26, p. 1 n.1].

2.   The only claims that the entire proposed class brings against Glovis are the Georgia RICO claims. However, Glovis argues only that Soriano has failed to state a Georgia RICO claim against it and does not specifically argue that Martinez has failed to state a Georgia RICO claim. [Doc. 37-1, pp. 3, 47–50]. Glovis states in a footnote that its motion to dismiss “focuses on Soriano's allegations ․ [and t]o the extent Martinez-Lopez asserts claims against Glovis, those claims should be dismissed for the same reasons.” Id. at 2 n.1.

3.   “There is no apparent substantive difference between the requirements for establishing a conspiracy to violate Federal RICO claim and a conspiracy to violate Georgia RICO claim.” Aquino, 739 F. Supp. 3d at 1194 (internal quotation marks omitted). Thus, the Court cites to persuasive authority considering federal RICO conspiracy claims in the course of considering Plaintiffs’ Georgia RICO conspiracy claim.

4.   Glovis argues that this is not sufficient to indicate control, which must go beyond “general instructions.” [Doc. 49, pp. 5–7]. However, Soriano alleges that Glovis's digital application provided her with her daily work schedule and her work assignments. [Doc. 25, pp. 40–43]. This seems more in line with the Eleventh Circuit's direction that “control arises when the alleged employer goes beyond general instructions, such as how many acres to pick in a given day, and begins to assign specific tasks [or] to assign specific workers.” Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200, 1209 (11th Cir. 2003) (internal quotation marks omitted).

5.   McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

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 decisions of the former Fifth Circuit handed down prior to October 1, 1981.

7.   The Court notes that Glovis, in its reply brief, argues that even if GFA and Glovis were joint employers, this does not create liability for Glovis for actions taken by GFA. [Doc. 49, pp. 15–18]. However, the Court does not read Glovis's motion to dismiss as including that specific argument—as opposed to the argument that Glovis was not a joint employer of Soriano, [Doc. 37-1, pp. 15–20], and Glovis cannot raise this argument for the first time in its reply brief, see Boring v. Pattillo Indus. Real Est., 426 F. Supp. 3d 1341, 1348 (N.D. Ga. 2019) (“[T]he Court need not consider new arguments made in reply.”). Even if Glovis had properly raised this argument, the Court is unconvinced. In “joint-employer relationships, each individual employer only bears liability for discriminatory acts within its control,” Bacon v. Nolte, No. 19-CV-299, 2020 WL 5096515, at *1 (S.D. Ga. Aug. 27, 2020) (collecting cases) or when the joint employer “knew or should have known of the discriminatory conduct and failed to take prompt corrective measures within its control,” Jean-Louis v. Clear Springs Farming, LLC, No. 13-CV-3084-T-30AEP, 2015 WL 2342688, at *5 (M.D. Fla. May 14, 2015). Here, Soriano specifically alleges that GFA employee Jorge Encinas told her that “all worker information” was shared with Glovis because Glovis made the decisions about which workers were terminated and that Glovis did not approve of her pregnancy. [Doc. 25, p. 50]. This is enough, at this stage, where Soriano has already plausibly alleged that GFA and Glovis are joint employers, to plausibly allege that Glovis knew or should have known of GFA's discriminatory conduct.

8.   Soriano also appears to bring a retaliatory hostile work environment claim as part of Count IX, her pregnancy retaliation claim under Title VII. [Doc. 25, p. 101]. Glovis does not address this claim in its argument that Soriano does not state a hostile work environment claim related to her race and national origin discrimination. See [Doc. 37-1, pp. 32–37] (referencing only a “hostile work environment claim based on race or national origin harassment”).

9.   Soriano also argues that she had the safety of her pregnancy threatened, [Doc. 46, pp. 20–21] (citing [Doc. 25, pp. 49–50]), but she does not allege that this conduct was based on her race or national origin, Jones, 683 F.3d at 1297 (“[O]nly conduct that is ‘based on’ a protected category, such as race, may be considered in a hostile work environment analysis.”).

10.   The Court notes that the R&R in Aquino was issued over three months before Muldrow was decided. See Aquino, 739 F. Supp. 3d at 1232 (R&R issued on January 2, 2024).

11.   Glovis does not argue that Plaintiff's pregnancy-related lifting restrictions do not qualify as a disability under the ADA.

12.   Soriano also brings a claim that Defendants violated the minimum wage and overtime provisions of the FLSA by not reimbursing her for certain costs in her first and final workweeks, [Doc. 25, p. 111], but Glovis does not appear to challenge this claim, [Doc. 37-1, pp. 45–47].

13.   “Other facilities” includes things like “transportation furnished [to] employees between their homes and work where the travel time does not constitute hours worked ․ and the transportation is not an incident of and necessary to the employment.” 29 C.F.R. § 531.32(a).

14.   Soriano attempts to distinguish Lima because she says that Lima did not involve “illegal deductions that exceeded the reasonable costs of the items furnished.” [Doc. 46, p. 36]. However, the plaintiffs in Lima argued that the employer's deductions were illegal kickbacks that did not fall under § 203(m). 2022 WL 3051227, at *5.

15.   GFA does not argue that the offer letters and support letters do not constitute employment contracts with Plaintiffs. [Doc. 36-1, pp. 8–10].

16.   There is significant overlap between issues raised by Glovis and GFA. As such, some of the analysis as to GFA's motion is very similar to that which the Court set forth as to Glovis's motion. Nevertheless, given the length of the order and the fact that the two motions are, in fact, separate, the Court has chosen to repeat the relevant law, rather than routinely referring back to earlier sections.

17.   GFA argues that Paragraph 120 of the first amended complaint alleges disparate treatment on the basis of national origin only. [Doc. 36-1, p. 14]; [Doc. 48, p. 10 n.3]. The Court simply notes that it reads Paragraph 120 to allege disparate treatment based on national origin and race, although it does include a typographical error in that it says “non-Mexican/Latino workers” where it appears Plaintiffs intended to say “non-Mexican/non-Latino workers.” [Doc. 25, p. 24].

18.   Plaintiffs do not raise hostile work environment claims as part of their Section 1981 race discrimination counts. [Doc. 25, pp. 87–92].

19.   Soriano also argues that she had the safety of her pregnancy threatened, [Doc. 47, p. 21], but she does not allege that this conduct was based on her race or national origin, see Jones, 683 F.3d at 1297 (“[O]nly conduct that is ‘based on’ a protected category, such as race, may be considered in a hostile work environment analysis.”).

20.   The Court notes that the R&R in Aquino was issued over three months before Muldrow was decided. See Aquino, 739 F. Supp. 3d at 1232 (R&R issued on January 2, 2024).

21.   The Court may consider Martinez's EEOC charge, which GFA attaches to its motion to dismiss, because it is central to Martinez's claim, [Doc. 25, pp. 11–12], and undisputed, Day v. Taylor, 400 F.3d 1272, 1275–76 (11th Cir. 2005).

22.   Because Martinez did not administratively exhaust his Title VII retaliation claim, the Court declines to consider GFA's alternative arguments for why Martinez fails to state such a claim.

23.   GFA notes that it does not seek dismissal of the portion of Plaintiffs’ FLSA claims alleging that GFA violated the minimum wage and overtime provisions of the FLSA by not reimbursing them for certain costs in their first and final workweeks. [Doc. 25, pp. 108, 111]; [Doc. 36-1, p. 32 n.8].

24.   “Other facilities” includes things like “transportation furnished [to] employees between their homes and work where the travel time does not constitute hours worked ․ and the transportation is not an incident of and necessary to the employment.” 29 C.F.R. § 531.32(a).

25.   Martinez alleges that he earned $11 per hour “[a]fter deductions,” which would make his gross pay rate something higher than $11 per hour, [Doc. 25, p. 28], and thus, his actual gross pay per week was higher.

26.   Plaintiffs attempt to distinguish Lima because they say that Lima did not involve “illegal deductions that exceeded the reasonable costs of the items furnished.” [Doc. 47, pp. 32–33]. However, the plaintiffs in Lima argued that the employer's deductions were illegal kickbacks that did not fall under § 203(m). 2022 WL 3051227, at *5.

27.   Because Martinez abandoned his FLSA retaliation claim and fails to plausibly allege causation as to this claim, the Court declines to consider GFA's additional arguments as to the other elements of an FLSA retaliation claim or that Martinez fails to allege lost wages or any recoverable damages for this claim.

28.   The Court has already found in Part II of this Order that Glovis's motion to stay is due to be granted.

29.   To be sure, as Glovis points out, the claims against each Defendant are not identical. The pregnancy discrimination allegations are a good example. But they do not have to be identical, and at this point, discovery is best served by keeping the cases together. And this issue can certainly be revisited later.

30.   At the end of the day, Glovis offers no compelling reason why proceeding through separate discovery phases, in two different cases, would promote judicial efficiency. On the other hand, it seems likely that there will be many witnesses who might be deposed in both cases on similar topics. As such, the strongest argument for denying the motion to sever is that it is simply premature. If discovery suggests that these cases are better tried separately, Glovis will be free to make that argument again well prior to trial. At this point, given the fact that both Plaintiffs bring Georgia RICO claims against both Defendants (and plausibly allege that Defendants jointly engaged in RICO enterprises), the question of whether to sever the cases seems premature and given the substantial factual overlap, allowing them to proceed together through discovery is neither prejudicial nor inefficient.

J. P. BOULEE, United States District Judge