Wells v. Gourmet Services Inc. et al (MAG+)

Filing 64

ORDER that Wells's 4/30/2014 ORAL Motion to Amend his 47 Amended Complaint to include a claim that he was subjected to a hostile work environment, wrongful discharge, and deprivation of pay in violation of Title VII on the basis of national o rigin be and is hereby GRANTED. Further, it is the RECOMMENDATION of the Magistrate Judge that the motion for judgment on the pleadings (Doc. 37 ) be granted to the following extent: 1. that, pursuant to Fed. R. Civ. P. 12(c) and 28 U.S.C. § 19 15(e)(2)(B)(ii), Wells's Title VII claim that he was subjected to a hostile work environment, wrongful discharge, and deprivation of pay on the basis of national origin be dismissed with prejudice; 2. that, pursuant to Fed. R. Civ. P. 12(c) and 28 U.S.C. § 1915(e)(2)(B)(ii), Wells's claim that he was subjected to a hostile work environment in violation of Title VII on the basis of his race be dismissed with prejudice;3. that, pursuant to Fed. R. Civ. P. 12(c) and 28 U.S.C. § 1915(e)(2)(B)(ii), Wells's claim that he was deprived of pay in violation of Title VII on the basis of his race be dismissed with prejudice; 4. that, pursuant to Fed. R. Civ. P. 12(c) and 28 U.S.C. § 1915(e)(2)(B)(ii), Wells's claim su bjected to unlawful retaliation in violation of Title VII be dismissed with prejudice; 5. that Wells's state law claims be dismissed for lack of jurisdiction; 6. that, in all other respects, the motion for judgment on the pleadings (Doc. 37 ) be denied; and 7. that this case proceed solely on Wells's FLSA claim. Objections to R&R due by 8/4/2014. Signed by Honorable Judge Charles S. Coody on 7/21/2014. (dmn, )

.

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

LAWRENCE WELLS,
Plaintiff,
v.
GOURMET SERVICES, INC., et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CIVIL ACT. NO. 2:13-CV-516-MEF
(WO)

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Before the court is the Defendants’ motion for judgment on the pleadings. (Doc. 37).
On April 30, 2014, this court held a hearing for the purpose of determining the legal and
factual basis of the claims set forth in Plaintiff Lawrence Wells’s amended complaint. (Doc.
47). Wells alleges that he was subjected to a racially-hostile work environment, deprived of
pay on the basis of race, and discharged in retaliation for filing a complaint of race
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e, et seq. (“Title VII”). In addition, Wells alleges that he was subjected to
unlawful retaliation in violation of Title VII when Gourmet Services, Inc., failed to provide
his prospective employers with positive references and other requested information.1 Wells
also alleges that he was deprived of overtime compensation in violation of the Fair Labor
Standards Act of 1938, as amended (“FLSA”), 29 U.S.C.A. § 201 et seq. Wells also asserts
state law claims of promissory fraud, breach of contract, and slander. Further, at the April

1

See Doc. 61.

30, 2014, hearing, Wells attempted to renew a claim that he was subjected to discrimination
in violation of Title VII because he is from New York City, which the court construes as a
motion to amend the amended complaint to reassert a claim for discrimination on the basis
of national origin in violation of Title VII. Having considered the amended complaint and
the Plaintiff’s statements at the April 30, 2014 hearing, the court (1) grants the motion to
amend the amended complaint and (2) concludes that Wells’s Title VII and state law claims
are due to be dismissed, and that this case should proceed only on Wells’s FLSA claim.
I.

Standard of Review

A.

Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co.

of Am., 511 U.S. 375, 377 (1994); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095
(11th Cir. 1994). This court is “‘empowered to hear only those cases within the judicial
power of the United States as defined by Article III of the Constitution,’and which have been
entrusted to them by a jurisdictional grant authorized by Congress.” Univ. of S. Ala. v. Am.
Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365,
1367 (11th Cir. 1994)). Therefore, a federal court is obligated to inquire into subject matter
jurisdiction sua sponte “at the earliest possible stage in the proceedings.” Id. at 410. “It is
to be presumed that a cause lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 U.S. at
377. “If the court determines at any time that it lacks subject-matter jurisdiction, the court

2

must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
B.

Judgment on the Pleadings and Failure to State a Claim Upon Which Relief Can
be Granted
“Judgment on the pleadings is appropriate when there are no material facts in dispute

and the moving party is entitled to judgment as a matter of law. All facts alleged in the
complaint must be accepted as true and viewed in the light most favorable to the nonmoving
party.” Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir. 2008) (citing
Cannon v. City of West Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001).
Further, when, as here, a litigant is allowed to proceed in forma pauperis in this court,
the court will screen the litigant’s complaint in accordance with the provisions of 28 U.S.C.
§ 1915(e)(2)(B). Section 1915(e)(2) requires a district court to dismiss the complaint of a
party proceeding in forma pauperis “at any time” if court determines that the complaint is
frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks
monetary damages from a defendant who is immune from such relief.

28 U.S.C. §

1915(e)(2)(B)(i)-(iii).
The same standard that governs a dismissal under Federal Rule of Civil Procedure
12(b)(6) governs both the evaluation of a complaint for failure to state a claim upon which
relief can be granted under 28 U.S.C. §1915(e)(2)(B)(ii) and the resolution of a motion for
judgment on the pleadings which does not require consideration of matters outside the
pleadings. Losey v. Warden, 521 Fed. Appx. 717, 719 (11th Cir. 2013) (applying the same
standard of review to a motion to dismiss for failure to state a claim and a motion for
3

judgment on the pleadings); Douglas v. Yates, 535 F.3d 1316, 1320 (11th Cir. 2008)
(applying the standard governing dismissal under Rule 12(b)(6) to review of a pro se
complaint under 28 U.S.C. § 1915(e)(2)(B)(ii)).

Under this standard, although the court must

accept well-pled facts as true, the court is not required to accept a plaintiff's legal
conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009) (“[T]he tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions”). In evaluating the sufficiency of a plaintiff's pleadings, the court must indulge
reasonable inferences in plaintiff's favor, “but we are not required to draw plaintiff's
inference.” Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir.
2005). Similarly, “unwarranted deductions of fact” in a complaint are not admitted as true
for the purpose of testing the sufficiency of plaintiff's allegations. Id.; see also Iqbal, 556
U.S. at 681 (stating conclusory allegations are “not entitled to be assumed true”).
A complaint may be dismissed if the facts as pled do not state a claim for relief that
is plausible on its face. See Iqbal, 556 U.S, at 679 (explaining “only a complaint that states
a plausible claim for relief survives a motion to dismiss”); Bell Atl. Corp. v. Twombly, 550
U.S. 544, 561-62, 570 (2007) (retiring the prior “unless it appears beyond doubt that the
plaintiff can prove no set of facts” standard). In Twombly, the Supreme Court emphasized
that a complaint “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. at 555. Factual allegations in
a complaint need not be detailed but “must be enough to raise a right to relief above the

4

speculative level on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 555 (internal citations and emphasis omitted).
In Iqbal, the Supreme Court reiterated that although Fed. R. Civ. P. 8 does not require
detailed

factual

allegations,

it

does

demand

“more

than

an

unadorned,

the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A complaint must
state a plausible claim for relief, and “[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.” Id. The mere possibility the defendant acted
unlawfully is insufficient to survive a motion to dismiss. Id. at 679. The well-pled
allegations must nudge the claim “across the line from conceivable to plausible.” Twombly,
556 U.S. at 570.
When evaluating the sufficiency of a complaint, a plaintiff’s pro se status must be
considered alongside the pleading requirements of Twombly and Iqbal. See Erickson v.
Pardus, 551 U.S. 89, 93-94 (2007) (applying Twombly to a pro se complaint while
recognizing the leniency that must be afforded to a pro se litigant who does not have the
benefit of a legal education); see also Douglas, 535 F.3d at 1320-22 (reviewing the dismissal
of a complaint under § 1915(e)(2)(B)(ii) while applying both Twombly and the rule that a pro
se complaint is to be construed with leniency). “A document filed pro se is ‘to be liberally
construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94

5

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Cf. Fed. Rule Civ. Proc. 8(e)
(“Pleadings must be construed so as to do justice”). However, the leniency shown to pro se
litigants “does not give a court license to serve as de facto counsel for a party, or to rewrite
an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v. County of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.1998), overruled on other grounds by Iqbal,
550 U.S. 662 (citing Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991); Pontier v. City
of Clearwater, 881 F. Supp. 1565, 1568 (M.D. Fla. 1995)). “While the pleadings of pro se
litigants are ‘liberally construed,’ they must still comply with procedural rules governing the
proper form of pleadings.” Hopkins v. Saint Lucie County School Bd., 399 Fed. Appx. 563,
565 (11th Cir. 2010) (unpublished) (citations omitted).
II.

Facts and Procedural History
On July 19, 2013, Lawrence Wells filed an 816-page pro se complaint alleging that

he was subjected to a hostile work environment, wrongfully discharged, and deprived of pay
by the Defendants: his former employer, Gourmet Services, Inc., and its alleged agents, Al
Baker, Gil Jones, Tia Benton, Charles Jones, and Jasper Manuel. Wells alleged that the
hostile work environment, discharge, and deprivation of pay were the result of discrimination
on the basis of race, national origin, and because he is “an outsider from New York City,”
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et
seq. (“Title VII”). (Doc. 1 pp. 1-2). In addition, Wells asserted state law claims of fraud and
breach of contract. (Doc. 1 p. 4).

6

On February 13, 2014, the Defendants filed a motion for judgment on the pleadings
(Doc. 37). Upon consideration of the motion, the magistrate judge recommended that
Wells’s national origin discrimination claims be dismissed. (Doc. 39 p. 12. ¶¶ 3-4). Further,
the magistrate judge recommended that the motion for judgment on the pleadings (Doc. 37)
be granted as to Wells’s Title VII claim that he was subjected to a hostile work environment,
wrongful discharge, and deprivation of pay on the basis of race, and that those claims be
dismissed with prejudice unless, on or before March 26, 2014, Wells filed an amended
complaint “that contains a short and plain statement setting forth specific factual allegations
from which it could be reasonably inferred that his employer discriminated against him on
the basis of his race.” (Doc. 39 p. 12 ¶ 2 (emphasis added)). Finally, the magistrate judge
recommended that Wells’s state law claims be dismissed for lack of jurisdiction unless Wells
complied with the court’s order to file amended complaint stating a Title VII claim.
On March 20, 2014, supplemented by an additional filing on March 28, 2014, Wells
filed 203 pages of documents purporting to comprise an amended complaint. (Docs. 47, 49).
Upon scrutinizing the numerous documents filed by Wells, the court determined that Wells’s
203-page filing consists of a 38-page amended complaint setting forth Wells’s claims (Doc.
47) and a three-page brief containing various legal citations (Doc. 47-1), with the remaining
pages consisting of exhibits; therefore, the court instructed the Clerk to docket the amended
complaint and attachments accordingly.

While substantially shorter than the original

complaint, Wells’s amended complaint is neither short nor plain and, therefore, does not

7

comply with the court’s directive to file a short, plain statement in compliance with Rule
8(a)(2) of the Federal Rules of Civil Procedure. (Doc. 39 p. 12 ¶ 2). Therefore, the court set
this case for a hearing on April 30, 2014, for the purpose of determining the legal and factual
grounds for the claims in Wells’s amended complaint. At the hearing, the Defendants
renewed their motion for judgment on the pleadings with respect to Wells’s amended
complaint. (Doc. 60 pp. 24-29 ).
Having carefully considered Wells’s amended complaint with its numerous
attachments and Wells’s statements at the April 30, 2014, hearing, the court concludes that
Wells has attempted to state the following claims in his amended complaint:
1.

a claim that Wells was subjected to a hostile work environment and
deprivation of pay on the basis of race, in violation of Title VII;

2.

a claim that, in violation of Title VII, Wells was discharged in retaliation for
filing a complaint of race discrimination before the EEOC;

3.

a claim that Wells was not paid overtime wages in violation of the FLSA;

4.

state law claims of promissory fraud, breach of contract, and slander.

(Docs. 47 & 49).
In addition, at the April 30, 2014 hearing, Wells attempted to renew his claim that he
was subjected to discrimination on the basis of his national origin.
Further, on July 14, 2014, Wells filed a document which the court construed as a
motion to amend his amended complaint to include an additional claim that he was subjected

8

to unlawful retaliation in violation of Title VII when Gourmet Services, Inc., failed to
provide his prospective employers with positive references and other requested information.
(Doc. 61). The court has granted that motion to amend. (Doc. 63).
III.

Discussion

A.

Title VII: National Origin Discrimination
In his original complaint, Wells contended that he was subjected to a hostile work

environment, wrongful discharge, and deprivation of pay in violation of Title VII on the basis
of national origin specifically because he is “an outsider from New York City” and is not a
native of the South. (Doc. 1 pp. 1-2). Wells did not raise his national origin discrimination
claim in his March 20, 2014, amended complaint, which supersedes his amended complaint.
See Riley v. Fairbanks Capital Corp., 222 Fed. Appx. 897, 888 (11th Cir. 2007). However,
at the April 30, 2014 hearing, Wells argued that he was subjected to discrimination because
he was “not from Montgomery” and because he was not a native of the South. (Doc. 60 p.
12). In the interest of affording Wells a full and complete opportunity to present his Title VII
national-origin discrimination claim, the court construes Wells’s arguments at the April 30,
2014 hearing as a motion to amend his amended complaint to include that claim, and the
court concludes that the motion to amend is due to be granted. See Fed. R. Civ. P. 12(a)(2)
(“The court should freely give leave [to amend] when justice so requires.”).
However, Title VII prohibits discrimination on the basis of national origin, not city
or state of origin. See Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 88 (1973) (“The term

9

‘national origin’ on its face refers to the country where a person was born, or, more broadly,
the country from which his or her ancestors came.”).

Title VII does not prohibit

discrimination in the workplace on the basis of some factor other than “race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1); Mendoza v. Borden, Inc., 195 F.3d 1238,
1244-45 (11th Cir. 1999). Thus, being “an outsider from New York City,” as opposed to
being a native of Alabama or the American South, does not, in and of itself, give rise to a
Title VII claim for discrimination on the basis of national origin. Wells has not made any
factual allegation from which it may reasonably be inferred that he was subjected to
discrimination on the basis of his or his ancestors’ country of origin. Accordingly, the
complaint does not state a claim for discrimination on the basis of national origin. Espinoza,
414 U.S. at 88 (holding that “national origin” refers to the country of origin of the plaintiff
or his ancestors).
The court finds that providing Wells another opportunity to amend his national-origin
discrimination claim would be futile because, as a matter of law, being a native of New York
City cannot form the basis for such a claim.

Therefore, Wells is not entitled to an

opportunity to amend his complaint before the claim is dismissed with prejudice. See
Bettencourt v. Owens, __ Fed. Appx. __, 2013 WL 5450978, 4 (11th Cir. Oct. 2, 2013) (“A
court must . . . afford a plaintiff an opportunity to amend his pro se complaint before
dismissing with prejudice unless an amendment would be futile.” (citing Bank v. Pitt, 928
F.2d 1108, 1112 (11th Cir. 1991)). Thus, Wells’s Title VII claim for discrimination on the

10

basis of national origin is due to be dismissed with prejudice.
B.

Title VII: Hostile Work Environment.
Title VII prohibits discrimination against individuals with respect to the “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). “When 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, Title
VII is violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations and internal
quotation marks omitted). To establish a Title VII hostile-work-environment claim on the
basis of race, the plaintiff must prove: (1) that he is a member of a protected class; (2) that
he was subjected to unwelcome harassment; (3) that the harassment was based on his race;
(4) that the harassment was severe or pervasive enough to alter the terms and conditions of
his employment and create a discriminatorily abusive working environment; and (5) that the
employer is responsible for the discriminatorily abusive working environment under a theory
of either vicarious or direct liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,
1275 (11th Cir. 2002).
Wells alleges that, in April, 2011, when he first reported to work as an executive chef
at Gourmet Services’s food service operations at Alabama State University, he was told that
“when [he] came to work pa[st] the front gate[, he] was entering Pecan Plantation [which
was what] Alabama State University used to be. And that the Master was still running the

11

House Niggers, and [Wells] was just one Field Nigger so get used to it.” (Doc. 47 pp. 4, 8-9).
Michael Mosely, the person who made this statement to Wells, was not Wells’s supervisor,
but was one of the other African-American chefs in the kitchen. (Doc. 60 p. 3). Wells does
not allege that Mosely discriminated against him by making this statement;2 rather, the
statement represents Mosely’s personal opinion regarding the workplace. Mosely did not
relate any specific incidents of discrimination upon which he based his opinion of the
workplace. Therefore, Mosely’s opinion cannot support a claim that Wells was subjected to
a hostile work environment. See Adams v. Austal, __ F.3d __, 2014 WL 2726171 (11th Cir.
June 17, 2014) (holding that, while courts must examine the totality of the workplace
circumstances to determine whether harassment was sufficiently severe or pervasive to alter
the terms and conditions of employment, “[t]he totality of a plaintiff's workplace
circumstances does not include other employees’ experiences of which the plaintiff is
unaware” or of which the employee learned only after his employment ended).
Wells alleges that, on December 12, 2011, when “it was busy” in the kitchen due to
the winter holiday season, Wells calmly and politely requested a pastry bag from Mr. Botts,

2

However, even if personal racial animus could be attributed to Mosely by virtue of his use of the
term “nigger,” Wells does not allege that his employer was or should have been aware of his co-worker’s
statement; thus, there is no basis for concluding that Well’s employer could be liable for any discrimination
or harassment caused by the statement itself. See 42 U.S.C. § 2000e-2 (making it unlawful for “an
employer” to discriminate on the basis of race); Miller, 277 F.3d at 1278 (“Where the perpetrator of the
harassment is merely a co-employee of the victim, the employer will be held directly liable if it knew or
should have known of the harassing conduct.”). Cf. Evans v. McClain of Georgia, Inc., 131 F.3d 957, 962
(11th Cir. 1997) (holding that, because a certain coworker was not a decisionmaker with respect to the
employer’s allegedly-discriminatory decisions, the coworker’s racially-discriminatory remarks did not
provide direct evidence that the employer discriminated on the basis of race).

12

a fellow African-American chef who was not Wells’s supervisor. (Doc. 47 p. 21; Doc. 60
pp. 4-6, 10; Doc. 1-2 p. 44). Botts attempted to make a pastry bag for Wells out of baking
paper, but Wells told Botts “that would not work for me. That I could not work like this!”
(Doc. 1-2 p. 44). Botts responded that he was trying to help Wells, and then proceeded to
elaborate on this point with a ten-to-fifteen-minute profanity-laden speech in which he
lobbed numerous epithets at Wells, including “bitch ass nigger,” “mother fucker,” and
“fucken punk.” (Doc. 47 p. 21; Doc. 60 pp. 4-6; see also Doc. 1-2 p. 44). At the conclusion
of his verbal tirade, Botts threatened to cut off Wells’s head, then chased Wells through the
kitchen with a kitchen knife while attempting to stab him. (Doc. 47 p. 21; Doc. 60 pp. 4-6).
Wells escaped out the back door of the kitchen, and the manager on site called Botts into an
office. (Doc. 1-2 p. 44). Wells returned to work sometime later. (Doc. 1-2 p. 44). Someone
called the campus police, who arrived and investigated but made no arrests. (Doc. 60 pp. 56). After the police left, the manager on site told Wells and all of the other employees
present to come into the staff dining room, where Botts apologized to Wells in front of the
staff. (Doc. 1-2 p. 44). Botts asked Wells to apologize as well, but Wells declined. (Doc.
1-2 p. 44). Botts was not at work on the following day, December 13, 2011. (Doc. 47 p. 21;
Doc. 60 p. 6). On December 13, 2011, Wells sent an email to Defendants Al Baker and Gil
Jones describing the pastry bag dispute and its aftermath and making clear that he was still
upset about the incident; however, he did not request any further action from his employer
at that time. (Doc. 1-2 p. 44). Botts returned to work alongside Wells from December 14-

13

16, 2011, during which he “tormented” Wells by “saying little comments and stuff.” (Doc.
60 p. 6). Wells met with Gil Jones and the president of Gourmet Services about Botts’s
continuing misconduct, and they instructed him to report the harassment to the human
resources department, which Wells did. After December 16, 2011, Botts was “go[ne]” and
no longer worked for Gourmet Services. (Doc. 60 p. 7).
Despite Botts’s use of the word “nigger” among a barrage of insults, Wells’s
description of the incident, which was clarified at the April 30, 2014, hearing, does not in this
context lend credibility to the inference that racial animus motivated Botts’s verbal assault
and subsequent attempt to take lethal action with a kitchen knife during the pastry bag
dispute. (Doc. 47 p. 21; Doc. 60 pp. 4-6).

Moreover, even if Botts’s use of the term

“nigger” can be considered an indication of racial animus in this context, Wells cannot
establish that his employer is responsible for Botts’s hostile actions under a theory of either
direct or vicarious liability, as is required to sustain his Title VII action. Miller, 277 F.3d
at1275. Botts was not Wells’s supervisor, but was merely his co-employee. (Doc. 60 p. 4).
An employer is liable for the harassing conduct of the plaintiff’s co-worker only if the
employer ‘knew or should have known of the harassing conduct but failed to take prompt
remedial action.’” Id. at 1278. In this case, Wells’s employer cannot be held liable for
Botts’s hostile actions because, immediately after the initial incident, and again shortly after
Wells informed the human resources department that Botts was continuing to “torment” him,
Wells’s employer took prompt action to address the situation, and the behavior was stopped.

14

See id. Moreover, because Botts’s behavior was promptly stopped, it was not so pervasive
as to alter Wells’s terms of employment. See Washington v. Kroger Co., 218 Fed. Appx. 822,
825 (11th Cir. 2007) (holding that, while a coworker’s conduct in hanging a figurine was
severe and physically threatening, the conduct was not so severe and pervasive that it altered
the terms and conditions of the plaintiff’s employment because the employer took prompt
remedial action by removing the figurine and censuring the co-employee). Therefore, Botts’s
behavior cannot give rise to a Title VII claim for a racially hostile work environment.
In early June, 2013, Defendant Charles Jones allegedly stated that “if he had a gun
[Wells] would be the first one he would shoot because [Wells] was the first person he had
seen” and that Wells “was lucky [Jones] d[id] not carry a gun anymore.” (Doc 47 p. 24).
Wells alleges that Jones’s conduct created a hostile workplace, but he has not alleged any
facts from which it could reasonably be inferred that Jones’s impulse to shoot Wells was
motivated by racial animus. Title VII is not a workplace civility code, and it does not prohibit
hostile conduct or discrimination in the workplace, however unreasonable, on the basis of
some factor other than “race, color, religion, sex, or national origin.”

42 U.S.C. §

2000e–2(a)(1); Mendoza v. Borden, Inc., 195 F.3d 1238, 1244-45 (11th Cir. 1999).
Accordingly, Jones’s threat to shoot Wells, while decidedly hostile, does not support a Title
VII claim for a discriminatorily hostile work environment on the basis of race. Miller, 277
F.3d at 1275 (holding that, to establish a Title VII claim for workplace discrimination on the
basis of race, the plaintiff must establish that the workplace harassment was based on his

15

race).
Wells’s lengthy complaint contains a number of other allegations that the workplace
was hostile and unpleasant and particularly difficult; however, after careful examination of
each of those allegations and Wells’s statements at the April 30, 2014 hearing, the court is
unable to identify any facts from which it could reasonably be inferred that any workplace
hostility alleged in the complaint was the result of racial animus. Therefore, Wells has failed
to state a Title VII claim for a hostile work environment upon which relief can be granted.
See Miller, 277 F.3d at 1275 (holding that, to establish a claim for a hostile work
environment under Title VII, the plaintiff must establish that he suffered workplace
harassment on the basis of his membership in a class protected by Title VII, such as race).
Further, the court concludes that additional attempts to amend would be futile and that
Wells’s hostile work environment claim is due to be dismissed with prejudice.
C.

Title VII: Deprivation of Pay
Wells alleges that his employer discriminated against him on the basis of race in

violation of Title VII by reducing and withholding his pay. A plaintiff may state a claim for
race discrimination under Title VII by alleging facts that, if believed, would qualify as either
direct or indirect evidence of the employer’s intent to discriminate on the basis of race.
Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1257 (11th Cir. 2012). “‘Direct
evidence is evidence, that, if believed, proves the existence of a fact without inference or
presumption.’” Id. (quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir.

16

2004)). “‘Indirect evidence is circumstantial evidence.’” Id. (quoting Hamilton v. Southland
Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir. 2012)).
In the February 24, 2014, Recommendation, and at the April 30, 2014 hearing in this
case, Wells was advised that his Title VII race discrimination claims would be dismissed
unless he provided factual averments that, if proved, would constitute either direct or indirect
evidence that Wells’s ill-treatment in the workplace, including deprivation of pay, was the
result of racial animus. (Doc. 39 pp. 7-8; Doc. 60 pp. 10-15).

Despite being provided

numerous opportunities to allege specific facts from which it could reasonably be inferred
that he was deprived of pay on the basis of his race, Wells has not done so. Because Wells
has failed to allege any facts from which it could be inferred that he was deprived of pay on
the basis of his race, the court concludes that Wells has failed to state a claim for
discrimination under Title VII for deprivation of pay.

Further, the court concludes that

further attempts to amend would be futile and that Wells’s Title VII discrimination claim is
due to be dismissed with prejudice.
D.

Title VII: Retaliation
Wells alleges that he was terminated on June 10, 2013, for filing an EEOC claim on

April 9, 2013, on the pretext that, while on his watch, the kitchen’s health department score
of 74 was too low. (Doc. 47 pp. 26-27). Wells also alleges that he was subjected to unlawful
retaliation in violation of Title VII when Gourmet Services, Inc., failed to provide his
prospective employers with positive references and other requested information. (Doc. 61).

17

“To establish a prima facie case of retaliation under Title VII, a plaintiff must show that (1)
he engaged in statutorily protected expression; (2) he suffered an adverse employment action;
and (3) there is some causal relation between the two events.” Olmsted v. Taco Bell Corp.,
141 F.3d 1457, 1460 (11th Cir. 1998).
To establish that the plaintiff engaged in statutorily protected expression, the plaintiff
must show that he “‘had a good faith, reasonable belief that the employer was engaged in
unlawful employment practices.’” Weeks v. Harden Mfg. Corp. 291 F.3d 1307, 1311 (11th
Cir. 2002) (quoting Little v. United Tech., Carrier Transicold Div., 103 F.3d 956, 960 (11th
Cir.1997)). The plaintiff’s burden under this standard has both a subjective and an objective
component:
[The] plaintiff must not only show that he subjectively (that is, in good faith)
believed that his employer was engaged in unlawful employment practices, but
also that his belief was objectively reasonable in light of the facts and record
presented. It thus is not enough for a plaintiff to allege that his belief in this
regard was honest and bona fide; the allegations and record must also indicate
that the belief, though perhaps mistaken, was objectively reasonable.
Id. (quoting Little, 103 F.3d at 960).
In Wells’s April 9, 2013, EEOC complaint, he alleged that his employer discriminated
on him on the basis of his race by withholding promised bonuses, refusing to allow him to
discipline or promote employees, and reducing his pay. (Doc. 47 p. 35). Wells has also
made numerous allegations in this lawsuit that his employer subjected him to race- and
national-origin discrimination, retaliation, and a hostile work environment in violation of
Title VII. However, despite being given numerous opportunities to do so, Wells has
18

repeatedly failed to allege any facts from which it could possibly be inferred that any of the
allegedly-discriminatory or hostile acts were motivated by racial animus or national-origin
discrimination, or that he was subjected to retaliation because he filed an EEOC complaint
or because he filed this lawsuit. Therefore, Wells does not demonstrate that he engaged in
statutorily-protected expression under Title VII because he fails to articulate any objectivelyreasonable basis for his contention that the grievances alleged in his EEOC charge or in his
complaint were acts of race- or national-origin discrimination or retaliation in violation of
Title VII.
Accordingly, the court concludes that Wells is unable to state Title VII claim for
retaliation. Further, the court concludes that further attempts to amend would be futile and
that Wells’s Title VII retaliation claim is due to be dismissed with prejudice.
E.

FLSA Claim
The FLSA generally requires employers to pay overtime wages in the amount of one

and one-half times the employee’s “regular rate” for all hours worked in excess of forty
hours. See 29 U.S.C. § 207. The “regular rate of pay” is the “‘hourly rate actually paid the
employee for the normal, nonovertime workweek for which he is employed.’” 29 C.F.R. §
779.419(b) (quoting Walling v. Youngerman–Reynolds Hardwood Co., 325 U.S. 419, 424
(1945)). Wells alleges that, despite working in excess of 40 hours per week, he was not paid
overtime wages as required under the FLSA.
Wells recognizes that the overtime requirements of the FLSA do not apply to certain

19

exempt employees “employed in a bona fide executive, administrative, or professional
capacity.” 29 U.S.C. § 213(a)(1). “Chefs, such as executive chefs and sous chefs, who have
attained a four-year specialized academic degree in a culinary arts program, generally meet
the duties requirements for the learned professional exemption. The learned professional
exemption is not available to cooks who perform predominantly routine mental, manual,
mechanical or physical work.” 29 C.F.R.301 (e)(6).

In his complaint, Wells alleges that,

despite his $ 62,500 per year base salary and job title of Executive Chef (and later Executive
Chef/Food Production Manager), he was in fact a menial employee who spent at least ninety
percent of his hours at work engaged in manual, physical kitchen labor. (Doc. 47 pp. 11, 13;
Doc. 1-2 p. 9). Further, although Wells’s resume reflects that he studied culinary arts at
several institutions, including four years of study at the Food and Maritime Trade School in
New York City, New York (Doc. 1-2 p. 3), Wells argues that he lacks a four-year college
degree in a culinary arts program. Wells’s status as an exempt employee, if any, is not an
element of his FLSA claim; rather, it is an affirmative defense, and, if raised, the burden of
proving the exemption is on Wells’s employer. Abel v. S. Shuttle Servs., Inc., 631 F.3d 1210,
1212 (11th Cir. 2011).
Accordingly, because Wells alleges facts which, if proved, would demonstrate that
he was not compensated at the overtime rate for hours worked in excess of 40 hours per
week, the court concludes that Wells has stated an FLSA claim upon which relief can be
granted.

20

E.

State Law Claims
Wells alleges that the Defendants committed promissory fraud by inducing him to

enter into an employment contract by promising Wells that, in addition to his yearly salary,
he would be “eligible for a bonus program based on food cost reduction” to be agreed upon
at a later date. (Doc. 47 p. 3-7, Doc. 1-2 p. 9). According to Wells, the Defendants never
intended to, and never did, finalize an agreement for those bonuses or pay him those bonuses,
thereby breaching the employment contract. (Doc. 47 p. 3-7, 19; Doc. 1-3 pp. 1-2).

In

addition, Wells alleges that the Defendants have slandered him by falsely representing the
reasons for his termination to other potential employers. (Doc. 47 p. 27).
Wells’s claims for breach of contract, promissory fraud, and slander arise under
Alabama state law. Wright v. AmSouth Bancorporation, 320 F.3d 1198, 1204 (11th Cir.
2003) (recognizing an action for promissory fraud was governed by Alabama law); Hopkins
v. BP Oil, Inc., 81 F.3d 1070, 1071 (11th Cir. 1996) (recognizing that an action for breach
of contract was governed by Alabama law). The court does not have original jurisdiction
over these state law claims because they do not arise under federal law and complete
diversity is lacking. 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or treaties of the United States.”); 28
U.S.C. § 1332(a) (conferring original diversity jurisdiction on the federal courts in civil
actions “between citizens of different states” in which the jurisdictional amount is met); Wis.
Dept. of Corr. v. Schacht, 524 U.S. 381, 388 (1998) (“A case falls within the federal district

21

court's ‘original’ diversity ‘jurisdiction’ only if diversity of citizenship among the parties is
complete, i.e., only if there is no plaintiff and no defendant who are citizens of the same
State.”).
However, the court does have original jurisdiction over Wells’s FLSA claim because
that claim arises under federal law. “[I]n any civil action of which the district courts have
original jurisdiction” this court may exercise supplemental jurisdiction over “other claims
that are so related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States Constitution.” 28
U.S.C. § 1367(a). In deciding whether Wells’s breach of contract and promissory fraud
claims are part of the same case or controversy as his FLSA claim, the court must look to
whether the claims arise from the same facts, or involve similar occurrences, witnesses, or
evidence. Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 455 (11th Cir. 1996). Wells’s FLSA
claim arises out of his allegations that, during his employment with Gourmet Services, Inc.,
he worked more than forty hours per week but was not paid overtime wages. Wells’s
promissory fraud and breach of contract claims arise out of his allegation that he was
promised eligibility in a performance-based bonus program unrelated to the number of hours
worked, that he entered into an employment contract in reliance on that promise, and that his
employer never intended to, and never did, enter him in the bonus program or pay him a
performance-based bonus. Wells’s slander claim arises out of his allegation that the
Defendants have misrepresented to other potential employers that he was terminated due to

22

low health department scores, despite the fact that he was not responsible for the low scores.
Thus, none of Wells’s claims arise from the same facts or involve similar occurrences or
evidence. Further, the extent, if any, to which the same witnesses may be involved is unclear,
and any overlap in witnesses is solely a function of the fact that the federal and state law
claims all relate in some way to Wells’s employment at Gourmet Services, which, by itself,
is not a sufficient nexus to establish supplemental jurisdiction. See Lyon v. Whisman, 45
F.3d 758, 762 (3d Cir. 1995) (holding that supplemental jurisdiction was lacking where
“[t]he only link between [the plaintiff’s] FLSA and state law claims [was] the general
employer-employee relationship between the parties”).
As the Third Circuit stated in Lyon, supra:
[The plaintiff’s] FLSA [overtime] claim involved very narrow, well-defined
factual issues about hours worked during particular weeks. The facts relevant
to [the] state law contract and tort claims, which involved [the employer’s]
alleged underpayment of a bonus and its refusal to pay the bonus if [the
plaintiff] started looking for another job, were quite distinct. In these
circumstances it is clear that there is so little overlap between the evidence
relevant to the FLSA and state claims, that there is no “common nucleus of
operative fact” justifying supplemental jurisdiction over the state law claims.
In fact, it would be charitable to characterize the relationship of the federal and
state claims as involving even a “loose” nexus. Thus, Article III bars federal
jurisdiction.
Lyon, 45 F.3d at 763.
Likewise, in this case, the FLSA claim and the state law claims do not arise from the
same facts or involve similar occurrences or evidence, and supplemental jurisdiction is
lacking. Cf. Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 456 (11th Cir. 1996) (holding that

23

supplemental jurisdiction was lacking over airline retirees’ breach-of-contract claim for
cancellation of retirement benefits in the form of free airline flights because the facts
underlying that claim were completely unrelated to the facts underlying a federal ERISA
claim for changes to medical retirement benefits); Fernandez v. Xpress Painting Corp., 2012
WL 3562255 at *3 (S.D. Fla. 2012) (explaining the reluctance to find that FLSA claims and
additional state law contract or tort claims form part of the same “case or controversy” for
purposes of supplemental jurisdiction where the only factor shared by the state and FLSA
claims is the existence of an employer-employee relationship between the parties).
CONCLUSION
Accordingly, it is
ORDERED that Wells’s April 30, 2014, oral motion to amend his amended complaint
to include a claim that he was subjected to a hostile work environment, wrongful discharge,
and deprivation of pay in violation of Title VII on the basis of national origin be and is
hereby GRANTED.
Further, it is the RECOMMENDATION of the Magistrate Judge that the motion
for judgment on the pleadings (Doc. 37) be granted to the following extent:
1.

that, pursuant to Fed. R. Civ. P. 12(c) and 28 U.S.C. § 1915(e)(2)(B)(ii), Wells’s
Title VII claim that he was subjected to a hostile work environment, wrongful
discharge, and deprivation of pay on the basis of national origin be dismissed with
prejudice;

24

2.

that, pursuant to Fed. R. Civ. P. 12(c) and 28 U.S.C. § 1915(e)(2)(B)(ii), Wells’s
claim that he was subjected to a hostile work environment in violation of Title VII on
the basis of his race be dismissed with prejudice;

3.

that, pursuant to Fed. R. Civ. P. 12(c) and 28 U.S.C. § 1915(e)(2)(B)(ii), Wells’s
claim that he was deprived of pay in violation of Title VII on the basis of his race be
dismissed with prejudice;

4.

that, pursuant to Fed. R. Civ. P. 12(c) and 28 U.S.C. § 1915(e)(2)(B)(ii), Wells’s
claim subjected to unlawful retaliation in violation of Title VII be dismissed with
prejudice;

5.

that Wells’s state law claims be dismissed for lack of jurisdiction;

6.

that, in all other respects, the motion for judgment on the pleadings (Doc. 37) be
denied; and

7.

that this case proceed solely on Wells’s FLSA claim. It is further
ORDERED that the parties shall file any objections to the said Recommendation on

or before August 4, 2014. Any objections filed must specifically identify the findings in the
Magistrate Judge’s Recommendation to which the party objects. Frivolous, conclusive or
general objections will not be considered by the District Court. The parties are advised that
this Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file written objections to the proposed findings and recommendations in the
Magistrate Judge’s report shall bar the party from a de novo determination by the District

25

Court of issues covered in the report and shall bar the party from attacking on appeal factual
findings in the report accepted or adopted by the District Court except upon grounds of plain
error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein
v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of
Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc) (adopting as binding precedent all of the
decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981).
Done this 21st day of July, 2014.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

26