Opinion
Civil Action 2:22-cv-3096-RMG-TER
12-19-2023
WALTER MOORE, Plaintiff, v. PEGASUS STEEL, LLC, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
This action arises from Plaintiff's employment with Defendant. Plaintiff alleges causes of action for race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq. and 42 U.S.C. § 1981. Presently before the Court is Defendant's Partial Motion to Dismiss (ECF No. 25) based on Plaintiff's failure to allege facts sufficient to state a claim for relief. Plaintiff filed a Response (ECF No. 8), and Defendant filed a Reply (ECF No. 9). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
II. FACTUAL ALLEGATIONS
Plaintiff, an African American male, began working for Defendant in June of 2017 as a Welder/Fabricator. Am. Compl. ¶¶ 10-11 (ECF No. 23). Plaintiff worked with five other individuals who were all welders/fabricators, who all performed the same daily tasks, and who all reported to a supervisor by the name of Mike Cavanaugh. These individuals are Brian Rogers (Caucasian); Greg Hamby (Caucasian); Desmond Green (African American); Ronnie Jones (African American); and Kevin Akinjobi (African American). Am. Compl. ¶ 11. During his employment he received positive employment evaluations. Am. Compl. ¶ 12. On October 8, 2020, Cavanaugh performed an inspection and accused Plaintiff, Rogers, and Hamby of welding outside of accepted parameters. Am. Compl. ¶ 14. Rogers and Hamby received only a manger's warning, while Cavanaugh suspended Plaintiff for one week without pay and revoked his certification for 90 days, which resulted in a decrease in his rate of pay by $1.00 per hour. Am. Compl. ¶ 15. Similarly, Plaintiff and his African-American counterparts would be disciplined for failing to heat up specific materials though their Caucasian counterparts would perform the same task the same way and would not be disciplined. Am. Compl. ¶¶ 16-17. Plaintiff reported the disparate treatment to Portia Sisk, Chief Human Resource Officer, but Defendant did not take any action to resolve the issue. Am. Compl. ¶ 19. After his complaint, Plaintiff was told that he would need to retake the certification class/test and was presented with inaccurate disciplinary forms to sign. Am. Compl. ¶ 20. He was threatened with termination if he did not sign the inaccurate forms. Am. Compl. ¶ 21.
Plaintiff's first cause of action is entitled “Violation of Title VII- Racial Discrimination/Disparate Treatment” but within the cause of action he also references 42 U.S.C. § 1981. Plaintiff also alleges causes of action for hostile work environment and retaliation in violation of Title VII.
III. STANDARD OF REVIEW
Defendant moves to dismiss Plaintiff's causes of action pursuant to Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion examines whether Plaintiff has stated a claim upon which relief can be granted. The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:
[T]he pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”
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.” 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.Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir.2003).
IV. DISCUSSION
The current amended complaint follows the dismissal of Plaintiff's original complaint, wherein the court, noting that Plaintiff could cure the deficiencies in the original complaint by providing further factual information, allowed Plaintiff to file the present amended complaint. Defendant moves for dismissal of Plaintiff's retaliation and hostile work environment causes of action.
Defendant argues that Plaintiff's retaliation claim is subject to dismissal for Plaintiff's failure to allege facts sufficient to show Plaintiff suffered an adverse employment action or that a causal connection exists between Plaintiff's alleged protected activity any adverse action. A prima facie case of retaliation requires that: (1) Plaintiff engaged in protected activity; (2) his employer took an adverse action against him; and (3) a causal relationship existed between Plaintiff's protected activity and his employer's adverse action. See Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 217 (4th Cir. 2016). A Title VII plaintiff need not satisfy all of the prima facie elements set forth above to survive a motion to dismiss. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002) (“The prima facie case under McDonnell Douglas, however, is an evidentiary standard, not a pleading requirement.”). “Although a plaintiff need not plead a prima facie case at this stage, reference to the elements of a claim is helpful to assess whether the plaintiff has stated a plausible claim.” Allgaier v. Microbiologics, Inc., No. 1:22-CV-01900-ELH, 2023 WL 2837336, at *7-8 (D. Md. Apr. 7, 2023) (citing Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003); Young v. Giant Food Stores, LLC, 108 F.Supp.3d 301,314 (2015); Cloud v. Brennan, 436 F.Supp.3d 1290, 1300-01 (N.D. Cal. 2020) (“When a plaintiff does not plead a prima facie case, courts still look to the elements of the prima facie case ‘to decide, in light of judicial experience and common sense, whether the challenged complaint contains sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'”)).
With respect to his retaliation claim. Plaintiff alleges that he reported the disparate treatment between races to Sisk and, as a result, she told him that he would have to retake the certification class/test and was forced to sign inaccurate disciplinary forms. Am. Compl. ¶¶ 19-21. Although an adverse action in the retaliation context need not be an ultimate employment decision, it must be “materially adverse,” meaning “it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Prince-Garrison v. Maryland Dep't of Health & Mental Hygiene, No. 08-1090, 2009 WL 667421, at *3 (4th Cir. 2009) (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). The standard for demonstrating a materially adverse employment action therefore requires a plaintiff to show “actual harm or injury caused by the retaliatory conduct.” Williams v. Intier Automotive Interiors of America, Inc., No. 7:09-1144-JMC-KFM, 2011 WL 6965807, at *10 (D.S.C. Nov. 8, 2011). Whether an action is materially adverse “depends upon the circumstances of the particular case[ ] and should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.” Burlington, 548 U.S. at 71 (internal quotation marks omitted).
Defendant argues that the requirement to retake the certification class/test does not rise to the level of an adverse action. As recently noted by the District of Maryland, there is little case law regarding whether requiring an employee to complete additional training is an adverse action. Condillac v. Califf, No. CV DKC 20-1794, 2023 WL 2139794, at *5 (D. Md. Feb. 21, 2023). Nevertheless, the courts that have considered this issue have found that “imposition of additional training requirements failed to qualify as an adverse employment action.” Id. (citing Stoyanov v. Mabus, No. 07-CV-1953-DKC, 2013 WL 1104978, at *9 (D.Md. Mar. 15, 2013), affd sub nom. Stoyanov v. Behrle, 540 Fed.Appx. 167 (4th Cir. 2013) (granting summary judgment in favor of an employer on a claim based on an additional training requirement); Clemmons v. Columbus Consol. Gov't, No. 4:15-CV-54 (CDL), 2016 WL 6892086, at *12 (M.D.Ga. Nov. 22, 2016) (same); Rollins v. Al. Cmty. Coll. Sys., 814 F.Supp.2d 1250, 1306 (M.D.Ala. 2011) (same); Watson v. Potter, 23 Fed.Appx. 560, 564 (7th Cir. 2001) (affirming the district court that did the same). Further, the amended complaint fails to allege that retaking the certification class and test had a materially adverse affect on his employment.
Plaintiff argues that “the issue is not solely that Plaintiff was forced to undergo training again, but rather than the de-certification itself was directly tied to a reduction in pay ... [and] [t]he only way Plaintiff could regain his former rate-of-pay was to undergo training to regain his certification.” Pl. Resp. p. 4 (ECF No. 21). However, this argument is circular. The reduction in pay was related to the de-certification, which occurred prior to Plaintiff's complaint about the disparate treatment. The reduction in pay was not caused by the requirement to retake certification classes-it was caused by the revocation of his certification. Thus, the additional training fails to rise to the level of a materially adverse action.
For similar reasons, Plaintiff also fails to allege a causal connection between his protected activity and the requirement to retake the certification test. To adequately allege a causal connection, Plaintiff must plausibly plead that his protected activity was the “but-for” cause of the materially adverse employment action. Univ. Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). Even if retaking the certification class and test could be considered an adverse action, it is inextricably linked to the initial revocation of the certification. Plaintiff alleges that he was disciplined for a welding issue in part by losing his certification which resulted in a reduction in pay, though Caucasian employees with the same welding issue did not receive the same discipline. The reasonable inference from Plaintiff loss of certification is that he would have to be re-certified. Just because Sisk first notified Plaintiff of this requirement after he complained, it does not follow that the requirement did not already exist as part of the initial discipline about which Plaintiff was complaining. Because the discipline occurred before Plaintiff's complaint, it cannot be the but-for cause of the discipline. See Carr v. United States, No. 5:21-CV-245-D, 2023 WL 3635625, at *7 (E.D. N.C. May 24, 2023) (“Because General Gabbert decided to reassign Carr before Carr engaged in her protected activity on April 1, 2016, it is impossible that Carr's protected activity was the but-for cause of her reassignment.”) (citing Conrad v. CSX Transp., Inc., 824 F.3d 103, 108 (4th Cir. 2016)).
However, Plaintiff also argues that Sisk's requirement that Plaintiff sign the inaccurate disciplinary form or be terminated was an adverse action that clearly, as alleged, occurred after the protected activity. Defendant argues that requiring an employee to sign a disciplinary form which has “absolutely no impact upon his employment,” accurate or not, is not a “materially adverse” employment action. However, the allegations in the amended complaint state that Plaintiff's failure to sign the form would result in his termination, which would impact his employment. Further, the Fourth Circuit has held that “a letter of warning did amount to an adverse action because [plaintiff's supervisor] warned [plaintiff] that future disciplinary actions could result in further discipline, including termination.” Barnes v. Charles Cty. Pub. Schools, 747 Fed.Appx. 115, 119 (4th Cir. 2018) (per curiam). Likewise, the threat of termination if Plaintiff failed to sign a form is sufficient to allege an adverse action. Accordingly, Plaintiff has sufficiently alleged a claim for retaliation.
Defendant also moves to dismiss Plaintiff's hostile work environment claim. “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.' ” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc))(alteration in original) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Plaintiff must allege that he suffered from harassment that was (1) unwelcome, (2) based on a protected status, (3) sufficiently severe or pervasive to alter the conditions of his employment and create an abusive atmosphere, and (4) imputable to the employer. EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009). Plaintiff's amended complaint fails to allege harassment that was sufficiently severe or pervasive. Plaintiff appears to rely on his allegations that Cavanaugh “routinely administered baseless writeups against Plaintiff and his three aforementioned African American counterparts,” which “demonstrated a pattern of treating Caucasian employee[s] more favorably than their African American counterparts” and that Sisk required him to sign incorrect disciplinary documents, Am. Compl. ¶¶ 17-18, 20-21, to show harassment that was sufficiently servere or pervasive to alter the conditions of his employment and create an abusive atmosphere. When considering the severe or pervasive component of a hostile work environment claim, courts consider “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.” Harris, 510 U.S. at 23. Plaintiff's conclusory allegations fail to satisfy these considerations. Generally, unfair discipline does not constitute the kind of “discriminatory intimidation, ridicule, and insult,” Boyer-Liberto, 786 F.3d at 277, or “physically threatening or humiliating” conduct, Cent. Wholesalers. Inc., 573 F.3d at 176, that typically underlies a hostile work environment claim. See, e.g., Hill v. Hagel, 561 Fed.Appx. 264, 265-66 (4th Cir. 2014) (finding that the plaintiff's allegations of unfair evaluations, placement on a performance improvement plan, removal of supervisory duties, suspensions, leave restrictions, and revocation of a security clearance did not support hostile work environment claim under Title VII); Graham v. Prince George's Cnty., 191 Fed.Appx. 202, 204-05 (4th Cir. 2006) (affirming the district court's determination that a supervisor's harsh reprimands about an employee's performance were not sufficiently severe or pervasive to create a hostile work environment); Roberts v. Off. of the Sheriff for Charles Cnty., No. DKC-10-3359, 2012 WL 12762. at *7 (D. Md. Jan. 3, 2012) (finding that the imposition of disparate disciplinary sanctions and denial of training did not create a hostile work environment). Further, there are no factual allegations regarding the frequency of the alleged conduct or whether it unreasonably interfered with Plaintiff's work performance. Because Plaintiff fails to sufficiently allege a claim for hostile work environment, dismissal of that cause of action is appropriate.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendant's Partial Motion to Dismiss (ECF No. 25) be granted as to Plaintiff's hostile work environment claim and denied as to his retaliation claim. The undersigned notes that Defendant did not move for dismissal of Plaintiff's disparate treatment claim and, thus, that claim remains pending.