Neal v. Whole Food Market, Inc., No. 2:2017cv05313 - Document 42 (E.D. La. 2018)
Court Description: ORDER AND REASONS: The Court GRANTS defendant's partial 35 Motion to Dismiss. Plaintiff's claims of religious discrimination, racial discrimination, and a hostile work environment under Title VII and 42 U.S.C. § 1981 are DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 5/15/2018. (clc)
Download PDF
<![CDATA[
Neal v. Whole Food Market, Inc. Doc. 42 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MARQUES NEAL CIVIL ACTION VERSUS NO. 17-5313 WHOLE FOODS MARKET, INC. & WHOLE FOOD COMPANY, INC. SECTION “R” (5) ORD ER AN D REASON S Before the Court is Defendant Whole Food Com pany, Inc.’s partial m otion to dism iss. 1 For the following reasons, the Court grants the m otion. I. BACKGROU N D This case arises out of claim s of racial discrim ination in em ployment. 2 Plaintiff Marques Neal began working for Whole Foods in Houston, Texas in March 20 14. 3 In J une 20 15, plaintiff transferred to a Whole Foods store in Metairie, Louisiana. 4 Plaintiff is African-Am erican, and he alleges that he experienced racial discrim ination, a hostile work environm ent, and unlawful 1 2 3 4 R. Doc. 35. R. Doc. 34. Id. at 3 ¶ VII. Id. at 5 ¶ XVI. Dockets.Justia.com retaliation while em ployed by Whole Foods between March 20 14 and J une 20 16. 5 Specifically, plaintiff asserts that his supervisor and coworkers in Houston engaged in inappropriate and discrim inatory conversations about race, including discussions about slavery and Bill Cosby’s alleged sexual m isconduct. 6 According to the am ended com plaint, plaintiff reported these incidents to Whole Foods m anagement but no disciplinary action was taken. 7 Plaintiff alleges that he continued to experience discrim ination after transferring to the Metairie store. 8 Plaintiff asserts that he and other African-Am erican em ployees were often subject to verbal abuse in the workplace, and that he experienced and observed non-African-Am erican supervisors treating African-American team members in a degrading m anner that was distinct from the treatm ent of non-African-Am erican em ployees. 9 The am ended complaint specifically alleges that plaintiff’s im m ediate supervisor in Metairie displayed an offensive im age of an African-Am erican m an on his computer for several days and treated plaintiff less favorably than 5 6 7 8 9 Id. at Id. at Id. at Id. at Id. at 2 ¶ VI. 3. 3 ¶ X. 5 ¶ XVI. 5 ¶ XVII. 2 non-African-American em ployees with regard to work duties and scheduling requests. 10 Plaintiff asserts that he contacted the Whole Foods regional office m ultiple tim es to report racial discrim ination and other managem ent issues in the m eat departm ent. 11 In late May 20 16, plaintiff refused a request from a custom er to grind whole bone-in chickens. 12 In response, plaintiff’s supervisor allegedly berated and hum iliated plaintiff in front of the custom er and threw a chicken at him . 13 Plaintiff asserts that he never observed sim ilar treatm ent of any non-African-American employees, and he believes this conduct was m otivated by racial anim us. 14 Plaintiff was subsequently written up for insubordination and suspended indefinitely. 15 After his suspension, plaintiff com pleted a charge of discrim ination with the Equal Em ploym ent Opportunity Com m ission. 16 Plaintiff was later term inated from his position at Whole Foods. 17 On May 26, 20 17, plaintiff filed suit against defendants Whole Foods Market, Inc. and Whole Food Com pany, Inc., alleging racial discrim ination, religious discrim ination, a 10 11 12 13 14 15 16 17 Id. at Id. at Id. at Id. Id. Id. at Id. at Id. at 5-7. 8 ¶ XXV. 8 ¶ XXIV. 8-10 . 10 ¶ XXX. 10 -11 ¶ XXXIII. 3 hostile work environm ent, unlawful retaliation, and failure to pay wages and overtim e. 18 The com plaint asserts claims under 42 U.S.C. § 1981, Title VII of the Civil Rights Act, the Fair Labor Standards Act, and state law. 19 On J anuary 22, 20 18, the Court dismissed with prejudice plaintiff’s Title VII claim s that involve events in Houston, Texas before J une 20 15 because such claim s are tim e-barred. 20 The Court dism issed without prejudice plaintiff’s claim s of religious discrim ination under Title VII and a racially hostile work environment and racial discrim ination under Title VII and 42 U.S.C. § 1981. 21 The Court granted leave to amend as to these claim s. 22 Plaintiff’s retaliation claim s were not dism issed. Plaintiff tim ely filed an am ended com plaint. 23 In response, defendant Whole Food Com pany again moves to dism iss the claim s for a hostile work environm ent, racial discrim ination, and religious discrim ination. 24 18 R. Doc. 1. Whole Food Com pany is the Louisiana subsidiary of Whole Foods Market, and plaintiff’s allegations are directed at both defendants collectively. See R. Doc. 16; R. Doc. 34 at 2 ¶ VI. 19 R. Doc. 1 at 8 ¶ XXVIII. 20 R. Doc. 33 at 19. 21 Id. 22 Id. 23 R. Doc. 34. 24 R. Doc. 35. 4 II. LEGAL STAN D ARD To survive a Rule 12(b)(6) motion to dism iss, a plaintiff m ust plead enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 547 (20 0 7)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 239, 244 (5th Cir. 20 0 9). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that the plaintiff’s claim is true. Id. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elements of a cause of action. Tw om bly , 550 U.S. at 555. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal evidence of each elem ent of the plaintiff’s claim. Lorm and, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the com plaint that there 5 is an insuperable bar to relief, the claim m ust be dism issed. Tw om bly , 550 U.S. at 555. III. D ISCU SSION A. Re ligio u s D is crim in atio n In response to defendant’s m otion to dism iss with prejudice plaintiff’s claim of religious discrim ination, plaintiff m aintains that he has not reasserted that claim in the am ended com plaint. 25 The Court’s J anuary 22, 20 18, order put plaintiff on notice that failure to tim ely amend his com plaint would result in dism issal of his claim with prejudice. 26 Plaintiff had a “fair opportunity to present [his] case” as to religious discrim ination, and the Court dism isses his religious discrim ination claim with prejudice. Schiller v. Phy sicians Res. Grp., Inc., 342 F.3d 563, 567 (5th Cir. 20 0 3). B. Racial D is crim in atio n Plaintiff brings claim s of racial discrim ination under Title VII and 42 U.S.C. § 1981. 27 Both statutes prohibit racial discrim ination in em ploym ent. See CBOCS W est, Inc. v. Hum phries, 553 U.S. 442, 455 (20 0 8). Claim s under Title VII and § 1981 are subject to the sam e substantive legal 25 26 27 R. Doc. 36 at 4. R. Doc. 33 at 19. R. Doc. 34 at 12 ¶ XXXVII. 6 standards, and they differ only in their statutes of lim itations and adm inistrative exhaustion requirem ents. See Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 992 (5th Cir. 20 0 5); see also Thom pson v. City of W aco, 764 F.3d 50 0 , 50 3 (5th Cir. 20 14). The Court thus applies the same analysis to plaintiff’s claim s under both statutes. 1. H o s t ile W o r k En v ir o n m e n t An em ployee has a cause of action for racial discrim ination under Title VII and § 1981 “[w]hen the workplace is permeated with discrim inatory intim idation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim ’s em ployment and create an abusive working environment.” See Harris v. Forklift Sy s., Inc., 510 U.S. 17, 21 (1993) (internal citation om itted); see also Mendoza v. Helicopter, 548 F. App’x 127, 128-29 (5th Cir. 20 13). This standard requires extreme conduct, and “sim ple teasing, offhand com m ents, and isolated incidents (unless extrem ely serious) will not am ount to discrim inatory changes in the term s and conditions of em ployment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citation om itted). In evaluating hostile work environm ent claim s, courts consider the totality of the circum stances, including “the frequency of the conduct, its severity, the degree to which the conduct is physically threatening or 7 hum iliating, and the degree to which the conduct unreasonably interferes with an em ployee’s work perform ance.” Alaniz v. Zam ora-Quezada, 591 F.3d 761, 771 (5th Cir. 20 0 9) (internal citation om itted). A plaintiff m ust subjectively perceive the environment to be abusive, and the work environment m ust be objectively hostile or abusive. See Harris, 510 U.S. at 21-22. As explained in the Court’s J anuary 22, 20 18 order, 28 plaintiff’s allegations regarding his em ploym ent in Houston are not sufficiently related to alleged discrim inatory conduct in Metairie to m ake these incidents “part of the same actionable hostile work environment practice.” N at’l R.R. Passenger Corp. v. Morgan, 536 U.S. 10 1, 120 (20 0 2). The Court dism issed plaintiff’s Title VII claim s with prejudice insofar as they involve events that occurred in Houston, Texas before J une 20 15. 29 Plaintiff asserts that incidents in Houston relate to a pattern of ongoing retaliation. 30 But plaintiff’s retaliation claim s are not the subject of this motion to dism iss. 28 R. Doc. 33 at 8-9. Id. at 19. Defendant did not m ove to dism iss plaintiff’s § 1981 claim s as tim e-barred, and the Court did not dism iss those claim s with prejudice. But events in Houston are not relevant to plaintiff’s § 1981 hostile work environment claim because the Houston incidents do not form part of the same employment practice as the alleged incidents in Metairie. 30 R. Doc. 34 at 2 n.2, 4-5; R. Doc. 36 at 6. 8 29 Accordingly, the Court does not consider events in Houston in evaluating plaintiff’s hostile work environm ent claim . Excluding incidents that took place in Houston, plaintiff identifies six instances of alleged race-based harassm ent at defendant’s store: (1) his supervisor displayed a racially offensive im age on his computer for several days; (2) he was often scolded in a condescending m anner; (3) he was subject to retaliation by his m anager, J eff Zerwick, because Zerwick was aware of Neal’s com plaints of racial discrim ination at the Houston store; (4) his im m ediate supervisors enforced regulations on plaintiff that were not enforced on non-African-Am erican team members, such as requiring plaintiff to com plete daily poultry logs and ordering him to grind bone-in chickens; (5) his scheduling requests were either denied or ignored whereas his non-African-Am erican coworker’s scheduling requests were routinely granted; and (6) he was berated by his superiors in a meeting until he felt physically ill, and was then suspended and later term inated because of his com plaints of racial discrim ination and harassment. 31 These factual allegations are insufficient to create the reasonable inference that defendant is liable for a hostile work environm ent. The am ended complaint asserts that plaintiff’s imm ediate supervisor displayed a 31 R. Doc. 36 at 8-9. 9 highly offensive im age of an African-Am erican m ale as a screensaver or background im age on his workplace com puter for several days. 32 This im age allegedly depicted an African-Am erican m an with apelike characteristics, including copious am ounts of hair on his face, arms, hands, and knuckles. 33 According to the am ended com plaint, one of plaintiff’s coworkers opined that the im age resem bled plaintiff. 34 Zerwick, the store m anager, allegedly looked at the im age, laughed, and failed to take any remedial action. 35 The Fifth Circuit has explained “that intentionally com paring AfricanAm ericans to apes is highly offensive such that it contributes to a hostile work environment.” See Henry v. CorpCar Servs. Houston Ltd., 625 F. App’x 60 7, 612 (5th Cir. 20 15). But the am ended com plaint does not allege that plaintiff’s supervisor or coworkers com pared either plaintiff or the m an in the im age to an ape. The im age at issue is attached to plaintiff’s am ended com plaint. 36 It is a photograph of an extremely hairy m an standing with his arm s crossed. 37 Beyond the unusual am ount of hair, the im age does not indicate any connection between the man in the photograph and an ape. 32 33 34 35 36 37 R. Doc. 34 at 5-6 ¶ XVIII. Id. at 6 ¶ XVIII. Id. Id. R. Doc. 34-1. Id. 10 That plaintiff perceived the m an in the im age to have apelike characteristics does not render the display of this im age com parable to cases involving explicit m onkey references directed at African-Am erican em ployees. Cf. Henry , 625 F. App’x at 612-13 (wom an hired to perform in a gorilla suit at an em ployee meeting scheduled around J uneteenth “repeatedly em phasized the ‘black’ aspects of her gorilla suit” and “touched em ployees and sat in their laps while m aking com ments that were both sexually suggestive and racially degrading”); Allen v. Potter, 152 F. App’x 379, 382 (5th Cir. 20 0 5) (African-Am erican plaintiffs alleged that they were required to work in a cage and that coworkers m ade com ments like “Look at the m onkeys,” and “Don’t feed the monkeys”); W alker v. Thom pson, 214 F.3d 615, 626 (5th Cir. 20 0 0 ) (plaintiffs were subjected to racist rem arks for three years, including com parisons to slaves and m onkeys); Postell v. Lane, No. 12-527, 20 14 WL 4925665, at *6 (M.D. La. 20 14) (supervisor, am ong other offensive statem ents, told African-Am erican sales em ployees to go pick cotton and directly referred to African-Am erican em ployees as m onkeys). The display of the im age at issue does not rise to the level of severe or “extrem ely serious” conduct. See Faragher, 524 U.S. at 788. Nor does it indicate pervasive harassm ent. Plaintiff was em ployed at defendant’s Metairie location for about one year, and the objectionable image was 11 displayed for only a few days. 38 Moreover, a coworker’s alleged comm ent that the im age bore a likeness to plaintiff m ay have been objectively offensive, but it does not indicate severe or pervasive harassment. See Harris, 510 U.S. at 21 (explaining that the “m ere utterance of an epithet which engenders offensive feelings in an em ployee does not sufficiently affect the conditions of em ployment to im plicate Title VII” (internal quotation m arks and alterations om itted)). Plaintiff further asserts that he was treated differently than nonAfrican-Am erican em ployees because he was required to com ply with store policy to com plete daily poultry logs; he was ordered to grind whole bone-in chickens for a custom er; he was not afforded enough time on the clock to m aintain the m eat case; and his supervisor ignored, delayed, or denied his scheduling requests. 39 But these allegations do not plausibly show that plaintiff’s workplace was “permeated with discrim inatory intim idation, ridicule, and insult.” Harris, 510 U.S. at 21. As noted in the Court’s previous order, plaintiff does not state that com pleting poultry logs is particularly unpleasant or abusive. 40 Nor does plaintiff allege that grinding bone-in chickens is a humiliating or unpleasant task. 38 39 40 R. Doc. 34 at 6 ¶ XVIII. R. Doc. 34 at 6-8. R. Doc. 33 at 11. 12 The amended com plaint instead asserts that plaintiff objected to grinding bone-in chickens because he believed doing so would violate store policy and federal regulations and potentially dam age the m eat grinder. 41 Plaintiff’s factual allegations regarding his work schedule sim ilarly fall short of the kind of extreme conduct required to show a hostile work environment. See Faragher, 524 U.S. at 788. Plaintiff’s conclusory assertions that he and other African-Am erican em ployees were often yelled at with condescension and treated in a degrading manner 42 cannot substitute for the inadequacy of his specific factual allegations. The sole specific exam ple of degrading treatment in the am ended com plaint is the allegation that plaintiff’s supervisor berated him in front of a custom er and threw a chicken at him when he refused to grind bone-in chickens. 43 The Court granted plaintiff leave to am end his hostile work environm ent claim , but the am ended com plaint does not describe additional instances of verbal abuse or degrading treatm ent. Notably, plaintiff does not allege that he was ever subject to explicitly race-based com m ents or abuse at the Metairie store. 41 42 43 R. Doc. 34 at 8 ¶ XXIV. Id. at 5 ¶ XVII. Id. at 8 ¶ XXIV. 13 The Fifth Circuit has found that plaintiffs failed to satisfy the legal standard for a hostile work environm ent in cases involving offensive com m ents and other acts that were objectively m ore serious and explicitly race-based than the conduct alleged by plaintiff here. See W hite v. Gov’t Em p. Ins. Co., 457 F. App’x 374, 380 -81 (5th Cir. 20 12) (holding that a m anager’s reference to an African-Am erican client as a “nigger” in the plaintiff’s presence, his com ment that the African-American plaintiff “always wanted to be a white fem ale,” and his reference to the office as a “ghetto” and a “FEMA trailer” were insufficient to support a hostile work environm ent claim ); Johnson v. TCB Constr. Co., 334 F. App’x 666, 671 (5th Cir. 20 0 9) (finding that a supervisor’s “highly objectionable” conduct did not satisfy the legal test for a hostile work environm ent, despite allegations that the supervisor called plaintiff a “dam n nigger,” directed other insults at plaintiff, and forced plaintiff to go to the bathroom in the woods). Although plaintiff argues that his allegations of ongoing retaliation are relevant to his hostile work environment claim , he does not offer factual allegations to indicate that any retaliatory acts were based on his race. Because plaintiff has failed to plausibly allege a pattern of race-based harassment, alleged incidents of harassm ent not based on race do not support his hostile work environment claim . See Hernandez v. Yellow 14 Transport, Inc., 670 F.3d 644, 654 (5th Cir. 20 12) (declining to consider “incidents of harassm ent not based on race” because the plaintiffs failed to show “that the alleged non-race-based harassment was part of a pattern of race-based harassment”). Even if allegations of retaliatory harassment were relevant to plaintiff’s hostile work environment claim , the amended com plaint does not include facts to suggest that plaintiff was subject to ongoing retaliatory harassm ent. Plaintiff instead alleges retaliation in connection with specific em ployment decisions, including his desired transfer to defendant’s Broad Street store in New Orleans and his suspension and term ination. 44 Considering all the facts alleged in the amended com plaint and drawing all reasonable inferences in favor of plaintiff, the Court finds that plaintiff fails to plausibly allege the existence of a racially hostile work environment at defendant’s Metairie store. Plaintiff had the opportunity to am end his com plaint to state a hostile work environment claim , but failed to remedy the deficiencies in his com plaint. See Fom an v. Davis, 371 U.S. 178, 182 (1962). The Court thus dism isses plaintiff’s hostile work environment claim with prejudice. 45 44 R. Doc. 34 at 4-5, 8-10 . Defendant also m oves, in the alternative, to strike all allegations stem m ing from alleged events that occurred in Houston before J une 20 15. 15 45 2. R a cia l D is cr im in a t io n “To establish a discrim ination claim under Title VII or § 1981, a plaintiff m ust prove that he or she was subject to an ‘adverse em ploym ent action’” because of race. Thom pson, 764 F.3d at 50 3. Adverse employment actions “consist of ‘ultim ate em ployment decisions’ such as hiring, firing, dem oting, prom oting, granting leave, and com pensating.” Id. Although the com plaint need not m ake out a prim a facie case of employment discrim ination to survive a m otion to dism iss, the plaintiff m ust allege sufficient facts to suggest that he suffered an adverse em ployment action because of his race. See Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 20 13) (citing Sw ierkiew icz v. Sorem a N .A., 534 U.S. 50 6 (20 0 2)). Plaintiff contends that he has stated claim s for racial discrim ination in connection with his suspension and term ination. 46 The Court previously dism issed these claim s because the complaint failed to allege facts to suggest that plaintiff’s suspension and term ination were connected to his race. 47 The am ended complaint does not include any additional factual allegations to See R. Doc. 35. Because the Court dism isses plaintiff’s hostile work environment claim with prejudice, it need not address the m otion to strike. 46 R. Doc. 36 at 19-20 . 47 R. Doc. 33 at 15-16. 16 cure these deficiencies. Accordingly, plaintiff’s claim s that he was suspended and term inated because of his race are dism issed with prejudice. Plaintiff asserts that he suffered additional adverse em ploym ent actions because of his race, including interference with his desired transfer to defendant’s Broad Street store, repeated verbal abuse and reprimands, disparate enforcem ent of certain regulations, disparate treatment of scheduling requests, and instructions to violate Whole Foods policy. 48 But the am ended com plaint does not allege facts to suggest that plaintiff was denied a transfer because of his race. Moreover, none of these alleged acts qualify as adverse em ployment actions redressible under Title VII or § 1981. See Jackson v. Honey w ell Int’l, Inc., 60 1 F. App’x 280 , 285 (5th Cir. 20 15) (explaining that “less favorable work assignm ents . . . do not constitute adverse em ploym ent actions”); Alvarado v. Tex. Rangers, 492 F.3d 60 5, 612 (5th Cir. 20 0 7) (noting that “[i]t is well established that the denial of a purely lateral transfer is not an adverse em ployment action redressible under Title VII”); McGrath v. State ex rel. Dep’t of Health & Hosp., 253 F.3d 70 6, 20 0 1 WL 498783, at *3 (5th Cir. 20 0 1) (finding that additional duties and an involuntary change in em ployee’s schedule did not qualify as adverse em ploym ent actions). 48 R. Doc. 36 at 18-19. 17 Because the amended com plaint fails to plausibly allege that plaintiff suffered an adverse em ploym ent action because of race, his claim s of racial discrim ination are dism issed with prejudice. Plaintiff argues that the Court should not dism iss his claim s against Defendant Whole Foods Market, Inc. because it did not join in the m otion to dism iss. 49 But plaintiff m akes identical allegations against both defendants, and he had a full opportunity to defend the sufficiency of his complaint. The Court thus dism isses plaintiff’s claim s against both defendants. See Tay lor v. Acxiom Corp., 612 F.3d 325, 340 (5th Cir. 20 10 ); Associated Recovery v. Does 1-44, No. 1610 25, 20 18 WL 1517863, at *17 (N.D. Tex. 20 18). IV. CON CLU SION For the foregoing reasons, the Court GRANTS defendant’s partial m otion to dism iss. Plaintiff’s claim s of religious discrim ination, racial discrim ination, and a hostile work environm ent under Title VII and 42 U.S.C. § 1981 are DISMISSED WITH PREJ UDICE. New Orleans, Louisiana, this _ _ _ _ _ day of May, 20 18. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 49 R. Doc. 36 at 1 n.1. 18
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
