Brown v. U.S. Foods, Inc. et al
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
U.S. FOODS, INC., et al.
CIVIL ACTION NO.
OPINION AND ORDER
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
Brown’s claims are all pleaded as common-law torts,
and the individual defendants he names are residents of
Brown’s operative second amended complaint to federal
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
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
For the reasons that follow, the court
will grant the motion to dismiss, albeit with leave to
allegations in his complaint fail to state a claim under
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.
To survive a motion to dismiss under Federal Rule of
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)).
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
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.”
retaliate against an employee or prospective employee
“because he has opposed any practice made an unlawful
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).
action by an employer that might “dissuade a reasonable
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.
Specifically, he alleges that he was
conduct at U.S. Foods.”
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
reporting the theft of company property and falsification
of time sheets.
See id. at 4-6.
statute apply only when an employee is targeted for
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.
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).
conclusory assertion in Brown’s recitation of his claim
that he was actually retaliated against for telling the
environment he was being subjected to,” id. at 21, does
not cure this deficiency, because his factual allegations
assets were being misused, not for, for example, charging
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
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
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
Brown’s hostile-work environment claim falls short
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
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
connected to his race, color, or sex.
harassment he experienced was based on a characteristic
protected by Title VII, his complaint fails to state a
IV. INTENTIONAL DISCRIMINATION
In addition, some of the allegations in Brown’s count
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
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.
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.
explained that the action U.S. Foods took based on this
‘altercation’ was a disciplinary citation for violating
the company’s Violence Prevention Policy.
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.
performance memoranda” and other disciplinary acts that
cause no “economic injury” are insufficient to meet this
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
Instead, he alleges repeatedly that he was fired
for complaining about his co-workers’ alleged misuse of
Because the citation is the only
action by U.S. Foods for which Brown presents any facts
citation does not amount to a “serious and material
employment,” Brown fails to state a claim of intentional
discrimination under Title VII.
Title VII of the Civil Rights Act protects workers
national origin, and from retaliation for complaining of
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.
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.
The court passes no judgment
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.
defendants’ motion to dismiss.
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.
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
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,
(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
DONE, this the 13th day of October, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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