JUDGE JOHN W. deGRAVELLES, UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA.
Before the Court is Defendant E.I. du Pont de Nemours and Company's ("DuPont") Motion to Dismiss Hostile Work Environment Claims Under Rule 12(b)(6). (Doc. 52.) Plaintiff Allen Williams ("Williams") opposes the motion. (Doc. 55.) Also before the Court is Williams' request for leave to amend his Complaint. (Doc. 55 at 7.) DuPont opposes the request. (Doc. 57 at 3.) The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 42 U.S.C. § 2000e-5(f)(3). Oral argument is not necessary.
After careful consideration of the law, facts, and the arguments of the parties, DuPont's motion is granted. Williams has failed to exhaust his administrative remedies for a hostile work environment under Title VII because a hostile work environment claim cannot reasonably grow out of the allegations of Williams' original EEOC charge and EEOC amendment. Further, Williams has failed to allege sufficient facts to establish a hostile work environment under 42 U.S.C. § 1981. Finally, Williams' request for leave to amend his Complaint (Doc. 55 at 7) is denied because his request is futile in that he seeks to allege untimely, unrelated, and conclusory facts.
The Court previously granted in part and denied in part DuPont's Motion for Partial Dismissal. (Doc. 51.) However, the Court granted DuPont leave to file a motion to dismiss on Plaintiff's hostile work environment claim because Plaintiff argued this claim in his Supplemental Memorandum in Opposition, (Doc. 40) which was the last filing made with respect to the previous motion to dismiss.
The Court need not recite the entire factual background of Plaintiff's original complaint because it is detailed in the Court's previous ruling. (Doc. 51 at 2-10.) Even so, the most salient facts surrounding Williams' EEOC charge merit repeating.
On September 13, 2010, Williams filled an EEOC charge ("the charge" or "original EEOC charge"). (Defendant's Exhibit A, Doc. 52-2 at 1.)
Williams claimed in the charge that he was "discriminated against based on [his] race, black" and that he was "retaliated against." (Id.) He asserted that he was discriminated against because a less experienced, white, junior operator "was not moved." (Id.) Additionally, Williams alleged that he was retaliated against because he "was written up for a `violation' that is not written in a safety manual or anywhere else stating a truck cannot have a hose still hooked up on the rear of a trailer even if it is properly secured." (Id.)
On September 11, 2012, the EEOC issued a Dismissal and Notice of Rights to Williams. (Doc. 52-3 at 1.) On October 5, 2012, Williams requested that the EEOC reconsider its final determination and consolidate his charge with those of Leo Scott and Nathaniel Rapp. (Doc. 52-4 at 1-2.) The Field Director of the New Orleans Field Office then revoked the previous Dismissal and Notice of Right to Sue on October 11, 2012. (Doc. 52-5 at 1.)
On January 31, 2014, Williams submitted a supplement ("EEOC amendment") to his EEOC filing. (Defendant's Exhibit E, Doc. 52-6 at 1.) In that letter, Williams alleged that inclement weather occurred on January 24, 2014, making it unsafe for him to travel to work. (Id.) When this happened, he contacted his new supervisor, Elizabeth Cromwell, and explained that he would be unable to come to work. (Id.) She allegedly "responded that [Williams] would have to take a day of vacation
DuPont now moves this Court to dismiss Williams' hostile work environment claim under Federal Rule of Civil Procedure 12(b)(6).
The governing standard appears in Rule 12, its many exceptions mined in case law. In general, pursuant to Rule 12(d), "[i]f, on a motion under Rule 12(b)(6)[,] ... matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d); United States v. Rogers Cartage Co., 794 F.3d 854, 861 (7th Cir.2015). Naturally,
Here, DuPont's attachments consist of Williams' EEOC charge, right to sue letters, EEOC amendment, and several other related documents. (See Docs. 52-2 through 52-7.) These documents were referenced by Williams several times in either his original Complaint or First Amended Complaint. (See, generally, Docs. 1 and 13.) Further, Leo Scott and Nathaniel Rapp's separate EEOC charges (Docs. 52-8 and 52-9) were referenced by Williams when he alleged that he requested for the EEOC to consolidate his charge with those of Scott and Rapp. (Doc. 13 at 2 ¶ 70.2.)
Thus, because Williams referenced these documents in his original Complaint or First Amended Complaint, it is appropriate for the Court to consider these documents in deciding the present motion. As such, the Court need not convert the DuPont's Rule 12(b)(6) motion into a motion for summary judgment.
DuPont argues that Williams' hostile work environment claim should be dismissed because he failed to administratively exhaust his claim under Title VII. (Doc. 52-1 at 2.) Further, with respect to section 1981, DuPont asserts that this Court "has already ruled that all discrete incidents of alleged discrimination arising before June 20, 2010 are time barred ... [and] are not resurrected by claiming that these discrete acts give rise to a hostile work environment claim." (Id.)
DuPont claims that "[b]ecause a hostile work environment generally consists of multiple acts over a period of time, the requisite EEOC charge must be filed within 300 days of any action that contributed to the hostile work environment. (Id. at 8-9 (quoting E.E.O.C. v. WC&M Enterprises, Inc., 496 F.3d 393, 398 (5th Cir.2007)).) Additionally, DuPont argues that the scope of Williams' lawsuit "is limited to the `scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." (Id. at 9 (citing Stewart v. May Dept. Stores, 294 F.Supp.2d 841, 848 (M.D.La.2003)).)
DuPont argues that "Williams only listed two discrete incidents of discrimination in his September 13, 2010 Charge: the January 24, 2010 schedule change and the April 6, 2010 write-up." (Id. at 11.) DuPont claims that "Williams did not mention any other events, nor did he assert that his work environment was generally hostile."
Next, with respect to section 1981, DuPont argues that the events prior to June 20, 2010 are not sufficiently related to post-June 20, 2010 claims, and, thus, are not actionable. (Id. at 12.) DuPont asserts that some of the events prior to June 20, 2010 are either spaced too far apart in time to be related or involved different employees. For example, DuPont claims that that some of the post-2010 conduct involved co-workers rather than the same supervisor, and that Williams' supervisor, Valentine, was transferred to a non-supervisory position, which constitutes an intervening act. (Id. at 12-15.)
Finally, DuPont argues that the post-June 20, 2010 conduct Williams' alleges does not plausibly state a claim for a hostile work environment. (Id. at 15.) DuPont concedes that Williams is a member of a protected class, but argues that the October 23, 2012 gesture Wade Miller made to Williams was not based on any racial motive. Additionally, DuPont contends that Williams' co-workers shunning him is not based on any racial motive and that "[t]he laws regarding discrimination do not require co-workers to like one another." (Id. at 17.)
Williams counters that he "alleges a multitude of acts that are not `one-time employment events' constituting only `discrete acts' such as termination, failure to promote, denial of transfer, or refusal to hire." (Doc. 55 at 2.) Williams argues that he alleged "acts occurring over a series of years." (Id.) Williams claims that he "alleges DuPont has allowed a racially hostile supervisor who created a culture of racism at the plant to supervise [him] for eight years[.]" (Id.) He claims that his supervisor, Valentine, "remain[ed] in a position to influence all levels of management at the plant and to influence [his] work environment thereafter, even after [Valentine] was purportedly moved to a different position due to racism." (Id.)
Williams argues that he "alleges facts which show the acts are related, occurred with sufficient frequency and severity, and that at least one of the related acts occurred within the statutory period." (Id. at 3.) Williams claims that "[i]n an effort to contend otherwise, DuPont relied upon its carving up the facts in the complaints" which he claims "is not the proper approach for a hostile work environment claim." (Id.) Rather, Williams asserts that "the Supreme Court instructs that all of the circumstances are to be considered." (Id. citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S.Ct. 2061, 2074, 153 L.Ed.2d 106 (2002).)
Further, Williams argues that he has not failed to exhaust administrative remedies
Additionally, Williams' claims that the original EEOC charge filed on September 13, 2010, and the EEOC amendment from January 31, 2014, "complained of instances in which DuPont had come up with a new rule or new reason for disciplining African American employees that had not previously been imposed on other Caucasian employees." (Id. at 10.) Williams argues that his EEOC charge "was submitted within 300 days of `any act that contributed to the hostile work environment' as required to render [his] hostile work environment claim under Title VII timely." (Id. (citing E.E.O.C. v. WC&M Enterprises, Inc, 496 F.3d 393, 398 (5th Cir.2007)).)
Finally, Williams also requests leave to amend his complaint to allege more facts that have come to light over the course of discovery. (Id. at 7.) He argues that discovery has led to more information that would support the claim of a hostile work environment. (Id. at 7.) Plaintiff gives a few examples of such incidents, including ones within "the last few weeks." (Id. at 7-9.) These allegedly include: employees making racial comments about President Barack Obama, African American employees being subjected the "good ol' boy system;" EEOC findings of race discrimination at the plant; plant manager Tom Miller continuing a pattern of discrimination; Williams being sent home because there was no restricted duty work where Caucasian employees were not sent home; Valentine pushing Williams' African American co-worker; and that Williams "will allege that his treating physician opines that [Williams'] distrustful and hostile work environment has lasted so long that it has destroyed his ability to succeed in the DuPont Work Place." (Id.)
DuPont argues that none of the facts cited by Plaintiff in the EEOC charge demonstrate a hostile work environment claim. (Doc. 57 at 2.) DuPont claims that Williams' EEOC charge "does not even hint at a hostile work environment claim." (Id. at 3.) Next, DuPont argues with respect to section 1981 that the only actions complained of by Williams after June 20, 2010 were two years after that day. (Id.) DuPont claims that this shows the pre-June 20, 2010 claims are unrelated.
With respect to Williams request for leave to amend his complaint, DuPont claims that Williams does not explain how the new facts would be timely or how they would state a plausible claim for a hostile work environment. (Id. at 4.) DuPont asserts that these new allegations are not a new legal theory based on the same conduct but wholly new conduct and occurrences that were not pled in the EEOC charge. (Id. at 4.) DuPont argues that Williams offers no excuse for not pleading these facts earlier and that most of the actions were alleged in two lawsuits filed in 2011 and 2014. (Id. at 4.)
DuPont claims that these new facts are not actionable under Title VII because Williams did not exhaust his administrative remedies. (Id.) DuPont argues that under section 1981, the pre-June 20, 2010 facts
In Johnson v. City of Shelby, Mississippi, 574 U.S. ___, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014), the Supreme Court has explained, "Federal pleading rules call for "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." Id., 135 S.Ct. at 346-47 (citation omitted).
Interpreting Rule 8(a) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)the Fifth Circuit explained:
Lormand v. US Unwired, Inc., 565 F.3d 228, 257 (5th Cir.2009) (quoting Twombly, 127 S.Ct. at 1965) (emphasis added).
Analyzing the above case law, our brother in the Western District stated:
Diamond Services Corp. v. Oceanografia, S.A. De C.V., No. 10-177, 2011 WL 938785, at *3 (W.D.La. Feb. 9, 2011) (citation omitted).
Finally, in Thompson v. City of Waco, Texas, 764 F.3d 500 (5th Cir.2014), the Fifth Circuit recently summarized the Rule 12(b)(6) standard as thus:
Id. at 502-03 (citations and internal quotations omitted).
Here, it must be determined whether Williams has administratively exhausted a hostile work environment claim under Title VII.
Under Title VII, "[a] private plaintiff must exhaust [his] administrative remedies by timely filing a charge with the EEOC and receiving a right-to-sue notice before seeking relief from the Court." Williams v. Louisiana, CV 14-00154-BAJ-RLB, 2015 WL 5318945, at *3 (M.D.La. Sept. 11, 2015) (citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir.2002); 42 U.S.C. § 2000e-5(f)(1)). Generally, "[a] charge under [Title VII] shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred[.]" 42 U.S.C. § 2000e-5(e)(1). However, the "time period is extended to 300 days if `the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice[,]'" such as Louisiana. Conner v. Louisiana Dep't of Health & Hospitals, 247 Fed.Appx. 480, 481 (5th Cir.2007).
The Fifth Circuit has explained the Title VII exhaustion requirement as thus:
Pacheco v. Mineta, 448 F.3d 783, 788-89 (5th Cir.2006) (internal citations omitted)
Further, as it relates to hostile work environment claims, the Fifth Circuit has explained:
Filer v. Donley, 690 F.3d 643, 647 (5th Cir.2012)
"A hostile work environment exists `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.'" Stewart, 586 F.3d at 328 (quoting Morgan, 536 U.S. at 116, 122 S.Ct. 2061). To determine whether a work environment is "hostile," a court considers "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (quoting Walker v. Thompson, 214 F.3d 615, 625 (5th Cir.2000)).
Additionally, there are three limitations on the "continuing violation" doctrine:
Stewart, 586 F.3d at 328.
Finally, this Court has previously explained:
Martin v. Winn-Dixie Louisiana, Inc., No. 3:13-CV-00682-JWD, 2015 WL 1281943, at *6 (M.D.La. Mar. 20, 2015) (citing Jeavons v. Exxon Mobil Corp., No. CIV.A. 13-753-JJB, 2014 WL 897425, at *2 (M.D.La. Mar. 5, 2014) (quoting Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006))).
In this case, Williams made two primary allegations in his original EEOC charge. First, Williams alleged in the EEOC charge that he was subject to a schedule change on January 24, 2010 "for no reason." (Doc. 52-2 at 1.) Second, he alleged that on April 10, 2010 he was written up after he complained to his supervisor, George Valentine. (Id.) Williams' asserted in the charge that "[a]ccording to [Valentine] ... the shift change occurred because [Williams] was weak and lacked confidence." (Id.) Further, "[t]he write-up ensued from incorrectly loading a chemical truck." (Id.)
DuPont argues that these two events that Williams complained of are discrete acts and that "Williams did not mention any other events, nor did he assert that his work environment was generally hostile." (Doc. 52-1 at 11.) On the other hand, Williams argues that a hostile work environment claim would reasonably grow out of his EEOC charge. (Doc. 55 at 10.) Further, Williams argues that his charge should be examined with the utmost liberality because a lay person does not understand the rules of pleadings. (Id. at 9-10.)
Here, The Court is not persuaded by William's arguments. While it is true that courts are to construe an EEOC charge liberally, see Pacheco, 448 F.3d at 788, even a liberal reading of Williams' EEOC charge does not reasonably lead to a hostile work environment claim growing out of his allegations of discrimination and retaliation. Williams originally complained of two specific events, a transfer and a subsequent write up.
Further, Williams characterized the transfer as racial discrimination, and the write up as retaliation. (Doc. 52-2 at 1.) While Williams' characterizations are not fatal by themselves, as the Court is aware that EEOC charges are generally initiated pro se, see Pacheco, 448 F.3d at 788,
Furthermore, the conduct Williams asserted in his EEOC charge does not show a workplace that 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." Stewart, 586 F.3d at 328. As such, a hostile work environment investigation could not reasonably grow from the allegations of Williams' EEOC charge. See, e.g., Chhim v. U. of Houston Clear Lake, CIV. H-15-1272, 129 F.Supp.3d 507, 513-14, 2015 WL 5252673, at *3 (S.D.Tex. Sept. 9, 2015) (explaining that the plaintiff failed to "include in [his] charge any allegations related to his prior Title VII lawsuit" and, because of that failure, a claim that he was retaliated against because of his prior lawsuit did "not reasonably grow out of the allegations in his EEOC charge.").
Nevertheless, before deciding whether dismissal is appropriate, the Court must determine if Williams' EEOC amendment satisfies the exhaustion requirement.
Williams' submitted an EEOC amendment on January 31, 2014. (Docs. 52-1 at 11; 55 at 10.) Essentially, Williams contends that his EEOC amendment supports a hostile work environment claim, while DuPont argues it the amendment is merely another discrete act that does not support a hostile work environment claim.
EEOC regulations provide that "[a] charge may be amended to cure technical defects or omissions" and that such amendments "related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received." 29 C.F.R. § 1601.12 (b); see also Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 878 (5th Cir.2003).
Here, Williams' January 31, 2014 EEOC amendment alleged new and distinct facts separate from his original charge. Williams alleged that that inclement weather occurred on January 24, 2014, making it unsafe for him to travel to work. (Doc. 52-6 at 1.) Williams claimed that his new supervisor, Elizabeth Cromwell, told him that he would have to come to work or take a vacation day. (Id.) Finally, because Williams missed work that day, he was docked a vacation day even though one of his Caucasian co-workers was not. (Id.)
Williams argues that his EEOC amendment along with his original charge "complained of instances in which DuPont had come up with a new rule or new reason for disciplining African American employees that had not previously been imposed on other Caucasian employees." (Doc. 55 at 10.) However, Williams' EEOC amendment makes no mention of any alleged rules that DuPont was enforcing on African American employees but not Caucasian employees.
Williams' EEOC amendment, and the events he alleges, occurred roughly four years after the transfer in his original EEOC charge. Further, he asserted new and distinct facts that cannot be said to "relate[] to or grow[] out of the subject matter of the original charge." 29 C.F.R. § 1601.12 (b). Thus, Williams' EEOC amendment does not relate back to his original charge and does not show that Williams' exhausted his administrative
Accordingly, as Williams' original EEOC charge and EEOC amendment do not contain any facts that suggest a hostile work environment, a hostile work environment claim cannot reasonably grow out of the allegations of his charge. Thus, Williams' Title VII hostile work environment claim must be dismissed.
Here, the Court must determine whether Williams' has plausibly stated a claim for hostile work environment under 42 U.S.C. § 1981.
There is no exhaustion requirement under section 1981 for a hostile work environment claim. "The use of section 1981 as an avenue for redress of employment discrimination is not constrained by the administrative prerequisites [applicable to] Title VII claims...." Walker v. Thompson, 214 F.3d 615, 625 (5th Cir.2000) (overruled on other grounds) (citing Scarlett v. Seaboard Coast Line R. Co., 676 F.2d 1043, 1050 (5th Cir. Unit B 1982)); see also, Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 992 (5th Cir.2005) ("[T]he only substantive differences between the [Title VII and section 1981] [are] their respective statute of limitations and the requirement under Title VII that the employee exhaust administrative remedies."); Williams v. CSX Transp. Co., Inc., 643 F.3d 502, 511 (6th Cir.2011) ("42 U.S.C. § 1981 ... does not require the exhaustion of administrative remedies."); Wagner v. Boh Bros. Const. Co., LLC, CIV.A. 11-2030, 2012 WL 2576285, at *1 (E.D.La. July 3, 2012) (collecting cases).
As this Court has previously explained, "Courts analyze employment discrimination claims brought under section 1981, including hostile work environment and retaliation claims, under the same standards applicable to Title VII claims." Wilson-Robinson v. Our Lady of the Lake Regl. Med. Ctr., Inc., CIV.A. 10-584, 2011 WL 6046984, at *3 (M.D.La. Dec. 6, 2011) (citing Raggs v. Mississippi Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002)); see also, Jones, 427 F.3d at 992; Wagner, 2012 WL 2576285, at *1. For a hostile work environment claim under section 1981, a plaintiff must establish that "(1) [he] belongs to a protected class; (2) [he] was subjected to unwelcome harassment; (3) the harassment was based on race; (4) the harassment affected a term, condition or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to
To affect a term, condition, or privilege of employment, the race-based harassment must have been "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. (citing Ramsey, 286 F.3d at 268). To determine whether a work environment is "hostile," a court considers "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Ramsey, 286 F.3d at 268. The environment must have been "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Hernandez, 641 F.3d at 125.
Furthermore, "[a]n egregious, yet isolated, incident can alter the terms, conditions, or privileges of employment and satisfy the fourth element necessary to constitute a hostile work environment." Lauderdale v. Texas Dept. of Crim. J., Institutional Div., 512 F.3d 157, 163 (5th Cir.2007) (citing Harvill v. Westward Commc'ns, LLC, 433 F.3d 428, 434-35 (5th Cir.2005)). "The inverse is also true: Frequent incidents of harassment, though not severe, can reach the level of `pervasive,' thereby altering the terms, conditions, or privileges of employment such that a hostile work environment exists." Id.
As the Court held previously, Williams' "§ 1981 claims that arose prior to June 20, 2010 are time barred by the four year statute of limitations under 28 U.S.C. § 1658(a)." (Doc. 51 at 1.)
The crux of this issue hinges on whether the facts Williams has alleged that occurred within the four-year limitations period — acts that occurred after June 20, 2010 — are related to those that occurred prior to the limitations period — before June 20, 2010. While the Court has stated the current standard for the continuing violation doctrine in ruling on the first motion to dismiss, it bears repeating here.
The Fifth Circuit has explained the continuing violations doctrine this way:
Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir.2004).
The Fifth Circuit then explained how Morgan has limited the doctrine:
Id. at 279-80 (5th Cir.2004).
Moreover, as this Court has explained:
Price v. PCS Nitrogen Fertilizer, L.P., CIV.A.03-153RETDLD, 2010 WL 1005181, at *4 (M.D.La. Mar. 15, 2010).
Here, with respect to those actions occurring after June 20, 2010 — within the limitations period — DuPont argues that there are only two allegations "which could conceivably give rise to a hostile work environment." (Doc. 51-2 at 14.) According to DuPont, these are the October 23, 2012 incident where "Wade Miller gestured in their direction, mocking them," and the allegation that Williams' co-workers are shunning him on a daily basis.
First, the 2012 "gesture" Wade Miller allegedly made towards plaintiff fails to satisfy at least two prongs of the five prong test to establish a hostile work environment. Williams merely alleged that a gesture was made in his direction that mocked him. Williams fails to assert that this harassment in the form of a gesture was based on a protected characteristic. Additionally, while the gesture may have been subjectively offensive to Williams, the vague allegation of single a mocking gesture is not objectively one that a reasonable person would find hostile or abusive.
Next, Williams' allegation that his co-workers shunned him fails to plausibly state a claim for a hostile work environment. Williams argues that he is "subjected to continued hostility by co-workers." (Doc. 55 at 6.) On the other hand, DuPont asserts that "[t]he laws regarding discrimination do not require co-workers to like one another." (Doc. 52-1 at 17.)
DuPont is correct that "Section 1981 does not impose a general civility code, and when the standards are properly applied, they will filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language." Burrle v. Plaquemines Par. Govt., CIV.A. 12-739, 2013 WL 2286113, at *4 (E.D.La. May 23, 2013), aff'd (Jan. 22, 2014) (citing Jackson v. Wilson Welding Serv., Inc., Civ. A. No. 10-2843, 2012 WL 12807, *5 (E.D.La. Jan. 4, 2012) (quotations omitted). However, as explained above, [f]requent incidents of harassment, though not severe, can reach the level of `pervasive,' thereby altering the terms, conditions, or privileges of employment such that a hostile work environment exists." Lauderdale, 512 F.3d at 163.
Even so, Williams is not specific as to whether this daily shunning is based on a protected characteristic. Nevertheless, given the entire scope of Williams' Complaint concerning alleged racial discrimination, in light most favorable to Williams, it is plausible that his being shunned is based on his race. At the same time, Williams has failed to allege how being shunned by his coworkers is "sufficiently severe or pervasive to alter the conditions of the [his] employment and create an abusive working environment." Ramsey, 286 F.3d at 268.
In Morash v. Anne Arundel County, the plaintiff alleged that she "`was ostracized and treated with scorn by co-workers and supervisors' who had learned of her complaint to internal affairs." CIV. JFM-04-2260, 2004 WL 2415068, at *3 (D.Md. Oct. 28, 2004). That court held that the plaintiff
Similarly here, Williams has not alleged any facts concerning the nature, severity, or pervasiveness of his co-workers shunning him. Rather, Williams merely alleged that when he walks into "the control room, other workers get quiet," that "[w]hen he is running the board, no one comes into the control room," and that "co-workers basically shun him and enter the same room where [he] is only if they have to." (Doc. 1 at 17 ¶ 63.) Because "section 1981 does not impose a general civility code," Burrle, 2013 WL 2286113, at *4, and Williams has made no factual allegations to suggest frequently being shunned by his co-workers reaches the "level of `pervasive,'" Lauderdale, 512 F.3d at 163, Williams allegations of shunning are insufficient to support a hostile work environment claim.
Next, Williams allegation that he was docked two hours pay on October 31, 2013, and that he was told by a Caucasian co-worker that "this type of action had never been taken against a DuPont employee before" (Doc. 1 at 16 ¶ 60) must fail as well. While it appears that Williams has attempted to show that he was docked pay because of his race by asserting a Caucasian co-worker told him this action had not been done before, even in light most favorable to Williams, this claim still does not show that he was docked two hours pay because of a protected characteristic.
Finally, Williams has alleged that on January 24, 2014 he was forced to take a days' worth of vacation time because he missed work due to inclement weather, but that a Caucasian co-worker was not. (Doc. 1 at 16 ¶ 61.) On its face, this is based on Williams' race. Even so, this appears to be an isolated incident unrelated to the other timely events. Even looking at the incident where Williams was docked pay by the same supervisor, roughly three months prior, these two events construed together are not sufficiently severe or pervasive to alter the conditions of the Williams employment.
Here, the Court must also look to those actions that occurred outside of the limitations period in order to determine whether Williams "can show a series of related acts, one or more of which falls within the limitations period." Pegram, 361 F.3d at 279.
Williams claims that "[a]ll of the alleged related acts must be taken together in assessing [his] hostile work environment claim[.]" (Doc. 55 at 7.) While Williams is generally correct, see Pegram, 361 F.3d at 279, as this Court has recently explained, "`discrete adverse actions, although racially motivated, cannot be lumped together with the day-to-day pattern of racial harassment' and therefore, if otherwise untimely, cannot be saved by the continuing violation doctrine." Boyd v. Trinity Industries, Inc., CIV.A. 14-00469-SDD, 2015 WL 3969464, at *2 (M.D.La. June 30, 2015) (citing Mayes v. Office Depot, Inc., 292 F.Supp.2d 878, 888 (W.D.La. 2003)); see also Pegram, 361 F.3d at 280 (applying Morgan to section 1981 claims).
Williams does advance the argument with respect to the write up that he has alleged physically intimidating conduct related to the alleged retaliatory write-up. (Doc. 55 at 6-7.) Williams claims that when he attempted to get a copy of the write up from his supervisor, Valentine, Valentine threw the write up at him, then later snatched it out of his hand which Williams claims was "extremely hurtful" to him. (Doc. 55 at 6-7 (citing Doc. 1 at 9 ¶ 38).) However, "[h]ostile work environment jurisprudence is not designed to `prohibit all verbal or physical harassment in the workplace[.]'" Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 443 (5th Cir.2011) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 77, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). Simply put, having a piece of paper thrown at a plaintiff and then later snatched out of his hands is not the type of physical harassment, nor the type of egregious isolated incident, contemplated by hostile work environment jurisprudence. See Mathirampuzha v. Potter, 548 F.3d 70, 78-79 (2d Cir.2008) (holding that a physical altercation where co-worker "grabbed the plaintiff's arm, punched him in the shoulder and the chest, spit in his face, and poked him in the eye" was not severe enough to create hostile work environment under Title VII).
Next, Williams argues that his allegation that Valentine "often refers to African American employees as `the brothers' and to Caucasian employees as `buddy', `bud' or `bubba'" (Doc. 55 at 6 (citing Doc. 1 at 2 ¶ 8) supports a hostile work environment claim. Williams places no specific timeline on these references, though it is reasonable to infer that they were continuous. However, importantly, Williams also alleged that in May 2010 "Valentine was transferred to a different position at the same worksite," that this move was to a "nonsupervisory role." (Doc. 1 at 12-13 ¶¶ 49-50.) As explained above, "[i]ntervening action by the employer, among other things, will sever the acts that preceded it from those subsequent to it, precluding liability for preceding acts outside the filing window." Stewart, 586 F.3d at 328. Thus, this claim is not actionable because Valentine was transferred to a nonsupervisory role.
Finally, Williams argues in 2007, Valentine's correction of his grammar over a plant wide radio, supports a hostile work environment. (Doc. 55 at 6.) First, as explained above, Valentine was transferred from his supervisory role in 2010. Second, it is unclear exactly what date in 2007 this occurred. The Fifth Circuit has held "that a `three year break' will defeat any attempt to establish a continuing violation." Butler v. MBNA Tech., Inc., 111 Fed. Appx. 230, 234 (5th Cir.2004) (citing Felton, 315 F.3d at 486). Thus, it appears on the face of Williams' Complaint that this claim must be dismissed. Lastly, even if this claim were properly before the Court, a single instance of having grammar corrected is not severe enough alter the terms, conditions, or privileges of Williams employment.
In sum, for the reasons set forth above, Williams has failed to state a claim for a hostile work environment under section
Here, the Court must determine whether to grant Williams leave to amend his complaint. The Fifth Circuit has explained that:
Jamieson By and Through Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir.1985) (citations omitted).
As an initial matter, Williams' request for leave to amend is contained in his opposition to DuPont's Motion to Dismiss. (Doc. 55 at 7.) While generally a plaintiff requests leave to amend in a formal motion, it is acceptable in this circuit for a plaintiff to request leave to amend in an opposition. Even so, a request for leave to amend in an opposition must meet certain requirements. As explained by the Fifth Circuit:
U.S. ex rel. Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 387 (5th Cir.2003).
Here, Williams has expressly requested leave to amend his complaint and claims that the additional facts he seeks to allege will support his hostile work environment claim. (Doc. 55 at 7.) Thus, the Court will consider Williams request for leave to amend.
This would be Williams's third amendment to his Complaint. (See First Amended Complaint, Doc. 13; Second Amended Complaint, Doc 30.) As explained above, Williams has failed to exhaust his administrative remedies for a hostile work environment under Title VII. He cannot overcome this hurdle by alleging facts that were not contained in his EEOC complaint. Thus, any attempt to amend his complaint with respect to Title VII would be futile.
Lewis v. Brown, CIV.A. 14-435-JWD-SC, 2015 WL 803124, at *6 (M.D.La. Feb. 25, 2015), appeal dismissed (May 29, 2015).
Second, Williams seeks to amend his complaint to show that being sent home in December 2012 because "DuPont did not have work that would meet the restrictions posed by his stress-related work emotional illnesses and a hip injury," (Doc. 1 at 16 ¶ 59) "was another creation and enforcement of a rule that had not been implemented with respect to a Caucasian employee at DuPont Burnside." (Doc. 55 at 9.) However, Williams offers little beyond his broad conclusory statement. Williams does not seek to assert additional facts to support his conclusion. "The court is not to give the `assumption of truth' to conclusions[.]" Oceanografia, 2011 WL 938785, at *3.
Finally, Williams seeks to amend his complaint to assert that "in the last few weeks, the plant manager Tom Miller, who is alleged herein to have continued the pattern of discrimination at Burnside, has been assigned a new title at DuPont and has been moved to work in the same trailer office at DuPont Burnside that houses George Valentine and Don Janezic who were moved in 2010 and 2011 in whole or in part due to race issues." (Doc. 55 at 8.) In addition, Williams claims, in support his hostile work environment theory, that Valentine pushed one of his African American co-workers. (Id.) However, the second prong of a hostile work environment claim requires a plaintiff to show that "[he] was subjected to unwelcome harassment." Wilson-Robinson, 2011 WL 6046984, at *3. Thus, amendment would be futile because Williams' claims are unrelated to how he was subject to unwelcome harassment.
In sum, after reviewing Williams' request for leave to amend, the Court finds that the events that Williams seeks to allege are untimely, unrelated, and conclusory.
Accordingly,
DuPont's Motion to Dismiss is
DuPont's Motion to Dismiss is
Indeed, this Court has recently analyzed dismissal of a Title VII claim for failure to exhaust under Rule 12(b)(1). See Ruh v. Super. Home Health Care, Inc., CV 15-439-SDD-SCR, 2015 WL 6870100, at *2 (M.D.La. Nov. 6, 2015). Even so, "it is clear that cases filed in the Fifth Circuit are subject to dismissal for failure to exhaust under Rule 12." Canon v. Bd. of Trustees of State Institutions of Higher Learning of Mississippi, 3:15CV9TSL-RHW, 133 F.Supp.3d 865, 875 n. 10, 2015 WL 5577222, at *7 n. 10 (S.D.Miss. Sept. 22, 2015) (citing Chhim, 129 F.Supp.3d at 514 n. 8, 2015 WL 5252673, at *3 n. 8). In this case, the Court will analyze DuPont's motion under Rule 12(b)(6) as it has done previously.
The events Williams alleged in 2014 are unrelated to the events of 2010, and, as the Court has explained, there are no facts in Williams' original EEOC complaint that would reasonably lead to a hostile work environment investigation. Thus, even if Williams had alleged a hostile work environment in his 2014 supplement, his supplement would not relate back to his original EEOC complaint.
