Opinion
5:24-CV-62-D
03-05-2024
MILTON E. WASHINGTON, Plaintiff, v. COMEDY CLUB RALEIGH LLC, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on Plaintiff Milton E. Washington's (“Washington”) application to proceed in forma pauperis, [DE-2], and for frivolity review of the complaint, [DE-1], pursuant to 28 U.S.C. § 1915(e)(2)(B). Washington has demonstrated appropriate evidence of inability to pay the required court costs, and the complaint is not clearly frivolous. Accordingly, it is recommended that the application to proceed in forma pauperis be allowed and that the case be allowed to proceed at this time.
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims”). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (“Examples of frivolous claims include those whose factual allegations are ‘so nutty,' ‘delusional,' or ‘wholly fanciful' as to be simply ‘unbelievable.'”). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
In determining whether a complaint is frivolous, “a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Id. “The word ‘frivolous' is inherently elastic and not susceptible to categorical definition.... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim.” Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may “apply common sense.” Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
To state a claim on which relief may be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level ....'” Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id. In the present case, Washington is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.-, Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required “to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274,1278 (4th Cir. 1985).
Washington filed a form complaint containing allegations of employment discrimination in a fill-in-the-blank format supplemented with a handwritten narrative. Compl. [DE-1]. In the complaint, Washington alleges that he was employed as a line cook by Defendant Comedy Club Raleigh LLC from November 2022 to April 2023, and that in April, Defendant discriminated against him based on his race. Compl. Ex. 1 [DE-1-1] at 1. Specifically, Washington alleges that the comedy club's executive chef, Erik Monroe Thompson, referred to Washington, who is African American, as a slave working on his plantation in front of several employees. Compl. [DE-1] at 4. According to Washington, when he attempted to discuss the incident with Thompson after the fact, Thompson threatened him. Id. Additionally, at one point Thompson allegedly told Washington that a female colleague was a “black hood ghetto chick.” Compl. Ex. 1 [DE-1-1] at 1. Washington claims that he reported Thompson's offensive conduct to Defendant, but his complaint was ignored by Human Resources and the Executive Director, “Mr. Jeremy (Last Name Unknown).” Id. As a result, Washington was “constructively discharged,” id, and now seeks recovery of back pay and any other relief as may be appropriate. Compl. [DE-1] at 5.
Reading the complaint liberally, it appears that Washington attempts to state a claim for hostile work environment in violation of Title VII and 42 U.S.C. § 1981. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (citing Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 373 (2004) (recognizing that hostile work environment claims may be brought under § 1981)). To state such a claim under either statute, a plaintiff must allege harassment that was (1) unwelcome; (2) based on race; (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) imputable to the defendant as the plaintiff's employer. Whitfield v. DLP Wilson Med. Ctr., LLC., 482 F.Supp.3d 485,490 (E.D. N.C. 2020) (citing E.E.O.C. v. Xerxes Corp., 639 F.3d 658, 668 (4th Cir. 2011); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001) (explaining the elements for a claim of hostile work environment are the same under § 1981 as they are under Title VII)). Additionally, before a plaintiff may file a suit under Title VII, he is required to exhaust his administrative remedies by timely filing a charge of discrimination with the EEOC. Sydnor v. Fairfax County, 681 F.3d 591, 593 (4th Cir. 2012) (citing 42 U.S.C. § 2000e-5(b), (f)(1)); Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citing 42 U.S.C. § 2000e-5(f)(1) (Title VII)).
Washington attached a right-to-sue notice from the EEOC dated November 5, 2023 to his complaint, demonstrating that he exhausted his administrative remedies and timely filed his lawsuit. Compl. Ex. 1 [DE-1 -1 ]. Turning to the substance of his hostile work environment claim, the highest hurdle for prospective plaintiffs to overcome is typically the third element, and Washington has alleged facts sufficient to survive frivolity review. “To determine whether conduct is severe or pervasive, the court considers a variety of factors, including 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.'” Berry v. Southern States Cooperative, Inc., No. 5:17-CV-635-FL, 2018 WL 4365499, at *2 (E.D. N.C. Sept. 13, 2018) (quoting Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011)). The number of occurrences is not dispositive, for “(s]ufficiently severe conduct can constitute harassment, even if the conduct occurs in only one instance.” Id. (citing.Boyer-Liberto, 786 F.3d at 280-81). “However, ‘ [a]ctivities like simple teasing, offhand comments, and off-color jokes, while often regrettable, do not cross the line into actionable misconduct.'” Id. (quoting E.E. O. C. v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 328 (4th Cir. 2010)).
In considering severity and pervasiveness, “the court examines the allegations both subjectively and objectively.” Coleman v. Altec, Inc., No. 5:16-CV-954-D, 2018 WL 4289610, at *3 (E.D. N.C. Sept. 7,2018) (citing Harris v. Forklift Sys., Inc,, 510 U.S. 17,21-22 (1993)). “First, the employee must subjectively consider the conduct to be sufficiently severe or pervasive as to alter his conditions of employment.” Id. (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001)). “Second, a court views the conduct from the perspective of a reasonable person in the employee's position to determine whether it is objectively severe or pervasive.” Id. (citing Breeden, 532 U.S. at 271). To be actionable, “discriminatory intimidation, ridicule, and insult” based on the protected characteristic must permeate the work environment in a manner “sufficiently severe or pervasive to alter the conditions” of the plaintiffs employment and to “create an abusive working environment.” Harris, 510 U.S. at 21 (quotations omitted).
Here, Washington alleges that Defendant's executive chef made a racially insensitive comment to him during his employment as a line cook; that he complained about the incident to Defendant; and that Defendant failed to address the complaint or otherwise rectify the situation. Compl. [DE-1] at 1-5; Compl. Ex. 1 [DE-1-1] at 1-2. In measuring the severity of harassing conduct, the status of the harasser may be a significant factor-e.g., “a supervisor's use of [a racial epithet] impacts the work environment far more severely than use by co-equals.” Boyer-Liberto, 786 F.3d at 278 (quoting Rodgers v. W.-S Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)). The status of the harasser is also relevant at step four of the hostile work environment inquiry, because where the harasser is the victim's supervisor, the employer is strictly liable if the behavior “culminates in a tangible employment action,” but otherwise “may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.” Id. (quoting Vance v. Ball State Univ., 570 U.S. 421, 424 (2013)). For purposes of the employer's vicarious liability, the harasser qualifies as a supervisor rather than a co-worker “if he or she is empowered by the employer to take tangible employment actions against the victim.” Id. (quoting Vance, 570 U.S. at 424).
Upon review of Washington's complaint and supporting documentation, the undersigned finds that Washington's claims are not clearly frivolous and that dismissal under § 1915(e)(2)(B) is not appropriate. Accordingly, it is recommended that the application to proceed in forma pauperis be allowed and that the case be allowed to proceed at this time.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff Milton Washington. You shall have until March 19, 2024 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her 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)(1); 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.
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 will 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).