Opinion
No. 7:19-CV-191-H
09-29-2020
STEPHANIE S. THEROUX, Plaintiff, v. ALORICA, INC., REBECCA CROCCO, JONATHAN BOWLING, TRACI CHILDS, CHESTER TAYLOR, JOHN DOE, and SUSAN DOE, Defendants.
ORDER and MEMORANDUM & RECOMMENDATION
This pro se case is before the court on the application [DE ##1, 6] by Plaintiff Stephanie S. Theroux to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and for frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), the matter having been referred to the undersigned by the Honorable Malcolm J. Howard, Senior United States District Judge. For the reasons set forth below, the court GRANTS Plaintiff's application to proceed in forma pauperis and RECOMMENDS that Plaintiff's complaint be dismissed.
IFP MOTION
The standard for determining in forma pauperis status is whether "one cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life." Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Based on the information contained in Plaintiff's revised affidavit [DE #6], the court finds that Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs. Thus, Plaintiff's application to proceed in forma pauperis is ALLOWED.
DISCUSSION
I. Standard for Frivolity Review
Notwithstanding the court's determination that Plaintiff is entitled to in forma pauperis status, the court is required to dismiss all or part of an action found to be frivolous or malicious, which fails to state a claim on which relief can be granted, or which seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2); Michau v. Charleston County, 434 F.3d 725, 728 (4th Cir. 2006). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Pro se complaints are entitled to a more liberal treatment than pleadings drafted by lawyers. See White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). However, the court is not required to accept a pro se plaintiff's contentions as true. Denton v. Hernandez, 504 U.S. 25, 32 (1992). The court is permitted to "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327.
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to give a "short plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8. The statement must give a defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint is insufficient if it offers merely "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555) (alteration in original). "A plaintiff must offer more detail . . . than the bald statement that he has a valid claim of some type against the defendant." Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001); see also White, 886 F.2d at 723 (affirming district court's dismissal of plaintiff's suit as frivolous where plaintiff's complaint "failed to contain any factual allegations tending to support his bare assertion"). While the court must read the complaint carefully to determine if the plaintiff has alleged facts sufficient to support her claims, White, 886 F.2d at 724, the court is not required to act as the pro se plaintiff's advocate or to parse through volumes of documents or discursive arguments in an attempt to discern the plaintiff's unexpressed intent, Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013).
II. Plaintiff's Employment Discrimination Claims
Title VII of the Civil Rights Act of 1964 ("Title VII") makes it an "unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). "Since an employee's work environment is a term or condition of employment, Title VII creates a hostile working environment cause of action." EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 313 (4th Cir. 2008) (quoting EEOC v. R&R Ventures, 244 F.3d 334, 338 (4th Cir. 2001)). To survive frivolity review on a hostile work environment claim based on religious discrimination, a complaint must allege facts from which it could reasonably be inferred that workplace hostility was "(1) unwelcome, (2) because of religion, (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere, and (4) imputable to the employer." Sunbelt Rentals, 521 F.3d at 313-14 (quoting Gilliam v. S.C. Dep't Juvenile Justice, 474 F.3d 134, 142 (4th Cir. 2007)). The complaint must also allege facts from which it could reasonably be inferred that the plaintiff's religion was the "but for" cause of the hostility. See Gilliam, 474 F.3d at 142. Title VII does not create a "general civility code," Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)), and "rude or boorish treatment are not sufficient to sustain a hostile work environment claim," Iskander v. Dep't of Navy, 116 F. Supp. 3d 669, 675-76 (E.D.N.C. 2015) (citing cases). "Title VII . . . only proscribe[s] behavior that is 'so objectively offensive so as to alter the conditions of the victim's employment.'" Id. (quoting Oncale, 523 U.S. at 81).
Title VII also makes it unlawful for an employer to retaliate against an employee for attempting to advance the guarantees of Title VII. See 42 U.S.C. § 2000e-3(a). A retaliation claim requires showing that an employee engaged in protected activity, the employer took an adverse action against the employee, and there was a causal relationship between the protected activity and the adverse action. See, e.g., DeMasters v. Carilion Clinic, 796 F.3d 409, 416 (4th Cir. 2015) (citing Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc)).
Plaintiff seeks to sue her former employer, Alorica, Inc., and certain individuals with whom she worked for religious discrimination under Title VII. (Prop. Compl. [DE #6-7] at 5; Suppl. Prop. Compl. [DE #6-8].) She asserts hostile work environment and retaliation claims. (Prop. Compl. at 5.) Plaintiff filed a charge of discrimination with the EEOC and received a right-to-sue letter. (Right-to-Sue Letter [DE #1-4]; Suppl. Prop. Compl. at 2.)
Roughly, Plaintiff asserts that Alorica and various supervisors and fellow employees created a work environment hostile to Plaintiff's "SINCERELY HELD RELIGIOUS BELIEFS" (Supp. Prop. Compl. at 1) by:
• subjecting the women's restroom at work to "an invasion of 93.7 BOB FM" radio station and forcing Plaintiff "to worship at the altar" of said radio station;(Suppl. Prop. Compl. at 1-4.) According to Plaintiff's complaint, a former supervisor granted Plaintiff an accommodation by permitting Plaintiff to sit by herself at a more private workstation but subsequent supervisors removed this accommodation, thereby forcing Plaintiff to sit among her coworkers where she was again subjected to the playing of lewd media and loud noise. (Prop. Compl. at 2-3.) Plaintiff contends the removal of her accommodation and the renewed subjection to lewd media and loud noise was retaliation for complaints she made to supervisors (and, presumably, the EEOC).
• playing lewd music loudly in the workplace and creating a policy of celebratory noise-making after business sales despite being aware of Plaintiff's hypertension and dislike of such noise;
• "airing pornographic images," television shows, and movies with "sex scenes and foul language," such as Law & Order: Special Victims Unit (NBC television series), on the workplace television monitors; and
• telling Plaintiff "not to speak about God anymore on the phone with [customers]."
As a preliminary matter, Title VII creates no liability for individuals. See Lissau v. S. Food. Serv., Inc., 159 F.3d 177, 180-81 (4th Cir. 1998). Therefore, all claims against individual defendants should be dismissed for failure to state a claim.
Plaintiff has failed to allege any facts from which it could be reasonably inferred that any of the alleged adverse employment actions were motivated by animus towards her sincerely held religious beliefs. Mere conclusory statements of membership in a protected class and adverse employment actions are insufficient to state a claim for relief under Title VII. See Gray v. Walmart Stores Inc., No. 7:10-CV-171-BR, 2011 WL 4368415, at *3 (E.D.N.C. Sept. 19, 2011) (citing Carpenter v. Cnty. Sch. Bd., 107 F. App'x 351, 351-52 (4th Cir. 2004) (per curiam) (unpublished), and Autry v. N.C. Dep't Hum. Res., 820 F.2d 1384, 1386 (4th Cir. 1987)). While the loud playing of 93.7 BOB FM radio in the workplace and airing of television shows such as Law & Order: Special Victims Unit may be rude and in poor taste, it does not rise to the level of a plausible Title VII violation when viewed objectively. Furthermore, that Plaintiff's coworker was subjected to no adverse actions when she discussed religious views with customers (Suppl. Prop. Compl. at 4) undermines any assertion that Plaintiff's religious beliefs were the "but for" cause of the alleged disparate treatment and retaliation. Therefore, the undersigned recommends that Plaintiff's Title VII claims be dismissed.
CONCLUSION
For the reasons stated above, the court GRANTS Plaintiff's application to proceed in forma pauperis [DE ##1, 6] and RECOMMENDS that Plaintiff's complaint be DISMISSED as frivolous or for failure to state a claim.
It is DIRECTED that a copy of this Order and Memorandum and Recommendation be served on Plaintiff, who is hereby advised as follows:
You shall have until October 16, 2020, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. (Dec. 2019).
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 29th day of September 2020.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge