Brown v. U.S. Foods, Inc. et al

Filing 21

OPINION AND ORDER: (1) Dfts' 15 motion to dismiss is granted as to the counts labeled "Hostile Work Environment" and "Retaliation" in plf's Second Amended Complaint (doc. no. 1 -1), and said counts are dismissed wi thout prejudice. Should plf believe that his allegations can be revised to state a plausible claim under Title VII, the court will consider a motion to amend his complaint filed by 5:00 p.m. on 10/20/2020; (2) The parties should also show cause, if t here be any, in writing by 5:00 p.m. on 10/20/2020, as to why, in the absence of plausible Title VII claims, the state claims in this suit should not be remanded to state court. Signed by Honorable Judge Myron H. Thompson on 10/13/2020. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
SCOTT BROWN,
Plaintiff,
v.
U.S. FOODS, INC., et al.
Defendants.

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CIVIL ACTION NO.
2:20cv06-MHT
(WO)

OPINION AND ORDER
Plaintiff

Scott

Brown--once

an

employee

of

U.S.

Foods, Inc., a major food service distributor--filed suit
in state court naming as defendants his former employer
and several of his fellow employees, and asserting what
appears to be a litany of injuries to his dignity and
career.
Brown’s claims are all pleaded as common-law torts,
and the individual defendants he names are residents of
Alabama

like

him.

Nonetheless,

defendants

removed

Brown’s operative second amended complaint to federal
court

on

the

counts--labeled

theory

that

the

“Retaliation”

claims
and

in

two

“Hostile

of

the
Work

Environment”--could arise under only Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 1981a
and 2000e through 2000e-17.

Brown now agrees that his

complaint endeavors to state Title VII claims.
The case is before the court on defendants’ motion
to

dismiss

all

of

Brown’s

claims.

The

court

has

jurisdiction over his ostensible Title VII claims under
28 U.S.C. § 1331 (federal question) and § 2000e-5(f)(3)
(Title VII), and it has jurisdiction over his state
claims

under

jurisdiction).

28

U.S.C.

§ 1367

(supplemental

For the reasons that follow, the court

will grant the motion to dismiss, albeit with leave to
amend,

as

to

Brown’s

Title

VII

claims

because

the

allegations in his complaint fail to state a claim under
that statute.

The court will also allow the parties an

opportunity to show cause why the remainder of Brown’s
complaint should not be remanded to state court.

2

I.

LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of
Civil

Procedure

12(b)(6),

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)).

“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.

II. RETALIATION
As stated, Brown’s complaint has two counts--labeled
“Retaliation” and “Hostile Work Environment”--that he
contends state claims under Title VII.

The court will

first turn to the count labeled “Retaliation.”
Title

VII

makes

it

unlawful

for

an

employer

to

retaliate against an employee or prospective employee
“because he has opposed any practice made an unlawful
3

employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing
under this subchapter.”

42 U.S.C. § 2000e-3(a).

Any

action by an employer that might “dissuade[] a reasonable
worker

from

making

or

supporting

a

charge

of

discrimination” will qualify as unlawful retaliation.
Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 174 (2011)
(quoting Burlington N. & Sante Fe Ry. v. White, 548 U.S.
53, 68 (2006)).
Brown contends that his tenure at U.S. Foods was made
miserable and eventually ended because he reported to the
company’s Human Resources Department that some of his
co-workers were falsifying time sheets and absconding
with corporate property.
(doc. no. 1-1) at 4-6.1

See Second Amended Complaint
The co-workers he reported are

now the individual defendants in this suit.

1. It is unclear from Brown’s filings whether the
alleged mistreatment he suffered at the hands of his coworkers came before or after he complained to the Human
Resources Department. See Second Amended Complaint (doc.
4

Brown

argues

that

retaliation claim.
harassed,

for

facts

give

rise

to

a

Specifically, he alleges that he was

disciplined,

retaliation

these

and

[his]

eventually

vocalization

conduct at U.S. Foods.”

terminated

of

the

“in

improper

Second Amended Complaint (doc.

no. 1-1) at 6. The trouble is that the “improper conduct”
he had complained about was not discrimination or other
conduct prohibited by Title VII.

The facts he alleges

do not show that he was retaliated against for opposing
discrimination
Instead,

he

or

for

alleges

making

he

was

a

Title

retaliated

VII

charge.

against

for

reporting the theft of company property and falsification
of time sheets.
This

cannot

Title VII.

The

See id. at 4-6.
support

a

retaliation

anti-retaliation

claim

provisions

under
of

the

statute apply only when an employee is targeted for
certain

protected

activities,

such

as

opposing

no. 1-1) at 3. The court has given Brown the benefit of
the doubt and assumed that the alleged mistreatment came
after he complained.
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discrimination that is barred by the statute or making
or supporting a Title VII charge.

See Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 570 U.S. 338, 347-48 (2013).

The

conclusory assertion in Brown’s recitation of his claim
that he was actually retaliated against for telling the
Human

Resources

Department

“of

the

hostile

work

environment he was being subjected to,” id. at 21, does
not cure this deficiency, because his factual allegations
show

retaliation

for

notifying

the

company

that

its

assets were being misused, not for, for example, charging
discrimination.

Because Brown’s allegations indicate

that he was targeted for reporting his co-workers’ misuse
of company resources--not for an activity protected by
Title VII--his complaint fails to state a retaliation
claim under the statute.

III. HOSTILE-WORK ENVIRONMENT
The other count in which Brown purports to state a
Title VII claim is labeled “Hostile Work Environment.”
A plaintiff may establish a hostile-work environment by
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showing “that: (1) he belongs to a protected group; (2)
he suffered unwelcome harassment; (3) the harassment was
based on a protected characteristic of the employee ...;
(4) the harassment was sufficiently severe or pervasive
to alter the terms and conditions of employment and
create a discriminatorily abusive working environment;
and (5) the employer is responsible for that environment
under a theory of either direct liability or vicarious
liability.”

Fernandez v. Trees, Inc., 961 F.3d 1148,

1153 (11th Cir. 2020).

Title VII does not prohibit all

harassment: only harassment based on such factors as an
employee’s

race,

color,

religion,

sex,

or

national

origin.
Brown’s hostile-work environment claim falls short
because

he

does

not

adequately

allege

that

he

was

targeted for harassment due to a characteristic protected
by Title VII.

While he declares that he was “subjected

to retaliation and a hostile work environment because of
his race, color and sex,” Second Amended Complaint (doc.
no. 1-1) at 5, this bare statement of a legal conclusion
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is not sufficient to meet the pleading standards set
forth in Twombly and Iqbal.

See Iqbal, 556 U.S. at 678.

Beyond that, he provides not a single factual allegation
suggesting that any of the harassment his co-workers
engaged

in

and

U.S.

Foods

failed

to

connected to his race, color, or sex.
factual

allegations

do

not

plausibly

constrain

was

Because Brown’s
show

that

the

harassment he experienced was based on a characteristic
protected by Title VII, his complaint fails to state a
hostile-work-environment claim.2

IV. INTENTIONAL DISCRIMINATION
In addition, some of the allegations in Brown’s count
labeled

“Hostile

Work

Environment”

could

also

be

2. It is unclear whether Brown also asserts,
separate from his retaliation claim, a retaliatory
hostile-work environment, that is, that the defendants
created a hostile-work environment in retaliation for his
having complained to the company’s Human Resources
Department.
However, as stated, the mistreatment he
allegedly suffered was for complaining about his
co-worker’s misuse of company resources, and such
complaining is not protected by Title VII.
8

understood as an attempted direct claim of intentional
discrimination against U.S. Foods under Title VII, 42
U.S.C. § 2000e-2.

In particular, Brown’s only factual

allegation that has anything to do with his race, color,
or sex is that:
“[T]wo African American employees ... engaged in
a physical altercation at US Foods and suffered
no punishment. Yet, US Foods attempts to falsely
justify their action here with a claim that Brown
engaged in an altercation with a co-employee.”
Second Amended Complaint (doc. no. 1-1) at 20.
response

to

the

pending

motion

to

In his

dismiss,

Brown

explained that the action U.S. Foods took based on this
‘altercation’ was a disciplinary citation for violating
the company’s Violence Prevention Policy.

See Pl.’s

Response to Motion to Dismiss (doc. no. 18) at 11.
For an employment action to amount to intentional
discrimination in violation of Title VII, it must effect
a “serious and material change in the terms, conditions,
or privileges of employment.”

Jefferson v. Sewon Am.,

Inc., 891 F.3d 911, 921 (11th Cir. 2018) (quoting Davis
v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir.
9

2001))

(emphasis

in

original).

“[N]egative

job

performance memoranda” and other disciplinary acts that
cause no “economic injury” are insufficient to meet this
threshold.

Davis, 245 F.3d at 1240.

Brown does not allege that the disciplinary citation
he received led to his firing or to any other economic
injury.

Instead, he alleges repeatedly that he was fired

for complaining about his co-workers’ alleged misuse of
company resources.

Because the citation is the only

action by U.S. Foods for which Brown presents any facts
suggesting

his

race

played

a

role,

and

because

the

citation does not amount to a “serious and material
change

in

the

terms,

conditions,

or

privileges

of

employment,” Brown fails to state a claim of intentional
discrimination under Title VII.

V.

CONCLUSION

Title VII of the Civil Rights Act protects workers
from

being

harassment

discriminated
for

their

against

race,
10

color,

or

subjected

religion,

sex,

to
or

national origin, and from retaliation for complaining of
such discrimination.

The facts that Brown currently

alleges are that he was mistreated for reporting his
fellow workers’ misappropriation of corporate resources.
Retaliating against an employee for that reason may be
unlawful, but Title VII does not make it so.

And the

disciplinary citation he allegedly received does not,
standing alone, support a Title VII claim.
In the notice of removal, defendants claimed that
Brown’s counts labeled “Retaliation” and “Hostile Work
Environment” must be read as Title VII claims because
Alabama law does not protect workers against “race or sex
discrimination, harassment, or retaliation.”
Removal (doc. no. 1) at 4.
today

on

whether

this

Notice of

The court passes no judgment

is

true,

nor

whether

Brown’s

current allegations in these two counts could plausibly
state any claims under Alabama law.

All the court holds

is that, as plaintiffs’ complaint is now pleaded, Title
VII provides him no remedy.

11

The

court

declines

to

rule

defendants’ motion to dismiss.

on

the

remainder

of

The court believes it

likely that the proper course of action at this point is
to remand the state law claims remaining in plaintiff’s
suit to the state court from which they were removed.
See 28 U.S.C. § 1367(c)(3); see also Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 357 (1988); Myers v. Cent.
Fla. Invs., Inc., 592 F.3d 1201, 1226 (11th Cir. 2010).
However, before deciding to do so, the court will give
the parties an opportunity to show cause why this case
should not be remanded.
The

court

will

also

allow

Brown

to

amend

his

complaint to attempt to state a plausible Title VII
claim, if he so chooses.

However, whether or not Brown

seeks to amend his complaint, the parties should show
cause why the case should not be remanded.
***
Accordingly, it is ORDERED that:
(1) Defendants’ motion to dismiss (doc. no. 15) is
granted

as

to

the

counts
12

labeled

“Hostile

Work

Environment”

and

“Retaliation”

in

plaintiff’s

Second

Amended Complaint (doc. no. 1-1), and said counts are
dismissed without prejudice.

Should plaintiff believe

that his allegations can be revised to state a plausible
claim under Title VII, the court will consider a motion
to amend his complaint filed by 5:00 p.m. on October 20,
2020.
(2) The parties should also show cause, if there be
any, in writing by 5:00 p.m. on October 20, 2020, as to
why, in the absence of plausible Title VII claims, the
state claims in this suit should not be remanded to state
court.
DONE, this the 13th day of October, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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