Opinion
2:21-cv-01892-BHH-MGB
08-13-2021
Y'vonnie Lincoln, Plaintiff, v. Jear Logistics, LLC, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Y'vonnie Lincoln (“Plaintiff”) filed this employment action on June 22, 2021. (Dkt. No. 1.) On July 20, 2021, Defendant Jear Logistics, LLC (“Defendant”) filed a Motion to Dismiss. (Dkt. No. 7.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons set forth herein, the undersigned recommends granting Defendant's Motion.
DISCUSSION
Plaintiff, an African American, was an employee of Defendant from April 2017 through her termination on October 8, 2019, working as a Night Dispatcher. (Dkt. No. 1 at 2.) “In or about the beginning of February 2019, Plaintiff noticed a coffee mug on a co-worker's desk depicting ‘Cynthia' from the Rugrats cartoon (traditionally a Caucasian character) as an African American woman with the word ‘Ratchet' displayed on it.” (Id.) Plaintiff alleges she then “report[ed] the incident” to her supervisor, Thomas Pindell, and she was “assured by Sallie Williams in Human Resources a few days later that the issue had been resolved.” (Id.) According to Plaintiff, “the discrimination continued.” (Id.) More specifically, “in or about July 2019, Plaintiff noticed another racially discriminatory item on display in her workplace-a calendar with a photoshopped picture stating, ‘The civil War is not over Yankees, it's only half-time.'” (Id.) Plaintiff alleges she again reported “what she had found to Mr. Pindell and Ms. Williams.” (Id.) According to Plaintiff, she was terminated on or about October 8, 2019, “in retaliation for her complaints of racial discrimination.” (Id.) Plaintiff alleges that the reason given for her termination, “an alleged threat against a co-worker, ” was pretextual in nature. (Id.) Plaintiff also alleges “Defendant retaliated against Plaintiff for reporting the discriminatory acts and failed to stop the discrimination, disparate treatment, and inappropriate behavior, thereby creating a hostile work environment.” (Id.) The Complaint alleges Title VII claims against Defendant for disparate treatment, hostile work environment, and retaliation. (Id. at 3-5.)
On July 20, 2021, Defendant filed a Partial Motion to Dismiss, seeking the dismissal of Plaintiff's claims for disparate treatment and hostile work environment. (Dkt. No. 7.) Plaintiff filed a response in opposition on August 3, 2021 (Dkt. No. 9), to which Defendant replied on August 10, 2021 (Dkt. No. 13). Defendant's Motion has been fully briefed and is ripe for review.
STANDARDS
Defendant seeks dismissal of this action under Rule 12(b)(6) of the Federal Rules of Civil Procedure. On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 Fed.Appx. 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)).
DISCUSSION
In its Motion, Defendant argues that Plaintiff's Title VII claims for disparate treatment and hostile work environment fail to set forth sufficient factual allegations to give rise to a plausible claim. (Dkt. No. 7 at 3-9.) The undersigned considers these claims in turn.
A. Disparate Treatment
Title VII states that employers cannot “discriminate against any individual with respect to [his or her] compensation, terms, conditions, or privileges of employment because of such individual's” race or sex. 42 U.S.C. § 2000e-2(a)(1). “Absent direct evidence, the elements of a prima facie case of discrimination under Title VII are: (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and[, ] (4) different treatment from similarly situated employees outside the protected class.” Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)). “In the context of a Title VII case, ‘an employment discrimination plaintiff need not plead a prima facie case of discrimination' to survive a motion to dismiss.” Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 (4th Cir. 2020) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)) (emphasis added). “Instead, a Title VII plaintiff is ‘required to allege facts to satisfy the elements of a cause of action created by that statute.'” Id. (quoting McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015)).
When determining if a plaintiff has pleaded sufficient plausible facts to establish a violation of Title VII, the inquiry “is whether [the plaintiff] alleges facts that plausibly state a violation of Title VII ‘above a speculative level.'” Id. (quoting Coleman, 626 F.3d at 190). The Court, therefore, does not require proof of all the elements of a prima facie case of discrimination, but requires that plaintiffs plausibly meet these elements. See id. at 617 n.8 (recognizing the elements of a prima facie case of discrimination under Title VII); Robinson v. Loudon Cnty. Pub. Schs., No. 1:16-CV-1604, 2017 WL 3599639, at *3 (E.D. Va. Aug. 18, 2017).
Here, Defendant asserts that Plaintiff “fails to plead any facts to support her allegation that she was treated differently from similarly situated employees outside of her protected class.” (Dkt. No. 7 at 3.) Defendant acknowledges that under the cause of action for disparate treatment, the Complaint alleges Defendant was intentional in the discrimination of Plaintiff by, inter alia, “showing preferential treatment to Caucasian employees and detrimental treatment to Plaintiff.” (Dkt. No. 1 at 3; Dkt. No. 7 at 3.) According to Defendant, Plaintiff “provides no specifics about the detrimental treatment that she allegedly received while Caucasian employees received preferential treatment.” (Dkt. No. 7 at 3.)
In response, Plaintiff points to the allegations in the Complaint concerning “the mug and the calendar incidents.” (Dkt. No. 9 at 3.) Plaintiff appears to assert that these allegations sufficiently establish the element of her disparate treatment claim at issue. She does not point to any other specific allegations in the Complaint and does not otherwise indicate that the Complaint alleges she was treated differently from similarly situated employees outside of her protected class.
Upon careful review, the undersigned finds Plaintiff's claim for disparate treatment should be dismissed based on her failure to allege facts that similarly situated employees outside the protected class received more favorable treatment. Her allegation that Defendant showed “preferential treatment to Caucasian employees and detrimental treatment to Plaintiff” does not satisfy this essential element of a disparate treatment claim under Title VII. See Coleman, 626 F.3d at 190-91 (affirming Rule 12(b)(6) dismissal of Title VII claim because “the complaint fails to establish a plausible basis for believing [that the plaintiff's colleague] and [the plaintiff] were actually similarly situated or that race was the true basis for [the plaintiff]'s termination”); Cox v. U.S. Postal Serv. Fed. Credit Union, No. GJH-14-3702, 2015 WL 3795926, at *3 (D. Md. June 17, 2015) (dismissing Title VII disparate treatment claim because plaintiff failed to provide sufficient facts “to adequately allege that she was treated differently from similarly situated employees outside of her protected class”); Goode v. Cent. Virginia Legal Aid Soc., No. 3:14-CV-281-HEH, 2014 WL 3945870, at *6 (E.D. Va. Aug. 12, 2014) (dismissing Title VII race discrimination claim because plaintiff “does not identify any similarly situated employees outside the protected class who received different treatment from him” and so “he fails to plausibly establish the final element”); Curry v. Philip Morris USA, Inc., No. 3:08-CV-609, 2010 WL 431692, at *3 (W.D. N.C. Feb. 4, 2010) (granting motion to dismiss when plaintiff did not “describe the alleged misconduct for which [other] individuals received no disciplinary action”).
Accordingly, the undersigned recommends Plaintiff's disparate treatment claim be dismissed.
B. Hostile Work Environment
A hostile environment exists “[w]hen 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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Thus, to establish a claim for a racially hostile work environment, Plaintiff must show that there is (1) unwelcome conduct; (2) based on his race; (3) which is sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive work environment; and (4) which is imputable to Defendant. See Boyer-Liberto v. Fontainbleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (citing Okoli v. Baltimore, 648 F.3d 216, 220 (4th Cir. 2011)). The third element of the claim “requires a showing that the environment would reasonably be perceived, and is perceived, as hostile and abusive[.]” Id. The degree of hostility or abuse to which Plaintiff was exposed must be determined by “examining the totality of the circumstances.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001) (referencing Harris, 510 U.S. at 23). Relevant considerations “include 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.” Id.
Notably, the Fourth Circuit has set “a high bar in order to satisfy the severe or pervasive test.” E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). “Title VII does not establish a general civility code for the American workplace” and “complaints premised on nothing more than rude treatment by [coworkers], callous behavior by [one's] superiors, or a routine difference of opinion and personality conflict with [one's] supervisor, are not actionable under Title VII.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (alterations in Sunbelt Rentals) (internal citations and quotation marks omitted). Although many hostile work environment claims involve repeated conduct, an isolated incident of harassment can amount to discriminatory changes in the terms and conditions of employment if that incident is “extremely serious.” Boyer-Liberto, 786 F.3d at 268.
Here, Defendant argues that Plaintiff's hostile work environment claim fails because, inter alia, the conduct Plaintiff alleges does not rise to the level of sufficiently severe or pervasive to alter Plaintiff's conditions of employment and to create an abusive work environment. (Dkt. No. 7 at 4.) In response, Plaintiff contends that this “is not an argument applicable to or appropriate for a 12(b)(6) motion.” (Dkt. No. 9 at 4.)
Even when construed in the light most favorable to Plaintiff, her allegations regarding the alleged conduct at issue do not rise to the level of harassment contemplated by Title VII. Here, the undersigned notes that Plaintiff's response brief contains new allegations about the incidents at issue. Specifically, in her brief, Plaintiff alleges that she saw the “racially discriminatory drinking mug on her desk” rather than a co-worker's desk, as alleged in the Complaint. (Dkt. No. 1 at 2; Dkt. No. 9 at 1 (emphasis added).) Plaintiff also alleges in her response brief that her “co-workers defaced an office-wide calendar and posted a racially derogatory remark” rather than the Complaint's allegation that Plaintiff “noticed” a calendar “on display in her workplace” with the alleged “racially discriminatory . . . photoshopped picture.” (Dkt. 1 at 2; No. 9 at 1-2.)
While these new allegations are not properly before the Court, Plaintiff's hostile work environment claim would still fail even if they had been included in the actual Complaint. As described in the Complaint and in Plaintiff's response brief, the isolated incidents, which occurred twice during Plaintiff's approximately 29 months of employment, are not of the kind of pervasiveness and severity contemplated by hostile work environment claims. For example, the calendar incident, as described by Plaintiff, was not specifically directed at Plaintiff. Further, while the Civil War may evoke thoughts of race-based atrocities such as slavery, the statement on the calendar, in and of itself, did not have an explicit racial component. See Hubbard v. S.C. Dep't of Mental Health, No. 3:20-CV-2482-JMC-SVH, 2021 WL 878790, at *7 (D.S.C. Mar. 9, 2021) (“Although Plaintiff alleges offensive, unfair, and unpleasant treatment from certain coworkers, there is no indication this environment was intentionally created by SCDMH or someone acting on its behalf based on his race, or that the limited number of incidents described created an environment that was objectively intolerable” (internal citations and quotation marks omitted)); Cox, 2015 WL 3795926, at *6 (dismissing hostile work environment claim concerning allegedly racist emails because, inter alia, “viewing these e-mails in the context in which they were sent, while still construing the facts in the light most favorable to Cox, the Court cannot conclude that these e-mails, which were sent to the entire Credit Union staff, constitute harassment based on Cox's race, as the e-mails were, on their face, race-neutral”); see also Ali v. BC Architects Engineers, PLC, 832 Fed.Appx. 167, 172 (4th Cir. 2020), as amended (Oct. 16, 2020) (affirming Rule 12(b)(6) dismissal of hostile work environment claim because “even if [defendant's] conduct was racially tinged, the operative complaint does not plausibly allege that such conduct was severe or pervasive enough to alter [plaintiff's] conditions of employment and create an abusive work environment”).
While Plaintiff's allegations establish that she subjectively perceived her work environment to be hostile, Plaintiff does not describe harassment that courts in this circuit have found to be severe or pervasive enough to plausibly allege an objectively hostile work environment. See, e.g., Austin v. Boeing Co., Inc., No. CV 2:20-1142-RMG, 2021 WL 129257, at *2 (D.S.C. Jan. 14, 2021) (finding allegations sufficiently establish a hostile work environment claim due to race where complaint alleged defendant “knowingly allowed the allegedly racist management staff member to deny Plaintiff promotional opportunities, to assign African American employees to unsanitary and undesirable areas of the facility, to make derogatory comments, to micro-manage and scrutinize Plaintiff's whereabouts, and to set and enforce two standards of protocol for African American and Caucasian employees”); see also EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009) (hostile work environment claim survived summary judgment where African-American plaintiff's co-workers had “mop-head dolls in their offices . . . hanging from nooses” and used the n-word in plaintiff's presence daily); Spriggs, 242 F.3d at 184 (hostile work environment survived summary judgment where African-American plaintiff continuously exposed to racist comments about African Americans by his supervisor, including the use of the n-word); Amirmokri v. Balt. Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir. 1995) (hostile work environment survived summary judgment where Iranian plaintiff called “local terrorist” on daily basis).
Based on the foregoing, the undersigned recommends Plaintiff's hostile work environment claim be dismissed.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that Defendant's Partial Motion to Dismiss (Dkt. No. 7) be GRANTED. Plaintiff's Title VII claims for disparate treatment and hostile work environment should be dismissed. Defendant has not sought the dismissal of Plaintiff's retaliation claim, however, and it remains pending.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).