Howard v. Sunniland Corp. et al
Filing
35
OPINION AND ORDER granting 27 Motion to dismiss Counts I & IV to the extent that both counts are dismissed with prejudice as against defendant Ortegon. Count I as against Sunniland is dismissed without prejudice to plaintiff filing an Amended Complaint within 14 days of this Opinion and Order. Plaintiff shall show cause within 14 days why defendant Theodore Cleveland Hayes should not be dismissed for failure to prosecute. Signed by Judge John E. Steele on 11/3/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GARRY L. HOWARD,
Plaintiff,
v.
Case No: 2:16-cv-321-FtM-99MRM
SUNNILAND
CORP.,
SCOTT
ORTEGON,
and
THEODORE
CLEVELAND HAYES,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants’ Motion to
Dismiss Counts I & IV (Doc. #27) filed on July 25, 2016.
filed a Response (Doc. #34) on September 7, 2016.
Plaintiff
For the reasons
set forth below, the motion is granted.
I.
Plaintiff Garry L. Howard (plaintiff or Howard) filed a fivecount Complaint alleging hostile work environment, discrimination,
and
retaliation
against
his
former
employer,
Sunniland
Corp.
(Sunniland), and his former supervisor, Scott Ortegon (Ortegon),
sued
in
his
(Doc. #1.)
individual
capacity
(collectively
“defendants”).
The underlying material facts are set forth in the
Complaint, and are accepted as true for purposes of the motion to
dismiss.
Plaintiff is an African American who was employed by Sunniland
since in or around October 12, 2007.
(Doc. #1, ¶¶ 14(a), (c).)
Plaintiff was initially hired as a driver, and later promoted to
the
position
of
Warehouse
Supervisor.
(Id.
at
¶
14(e).)
Plaintiff alleges that on April 22, 2010, Ortegon, Branch Manager
for Sunniland’s Naples office, told a racially-offensive joke to
a Sunniland salesman, Theodore Cleveland Hayes (Hayes), while
plaintiff was present.
(Id. at ¶ 14(g).)
Plaintiff alleges that
on the same day he mentioned to both Ortegon and Hayes that he did
not appreciate the racial comments and decided to keep his distance
from Hayes.
(Id.)
Plaintiff states that after this incident, he
was the topic of racial jokes and use of the “n” word by Hayes on
multiple occasions.
(Id. at ¶ 14(h).)
And despite numerous
complaints to Ortegon, nothing was done and no disciplinary action
was taken against Hayes.
(Id.)
Other incidents occurred at Sunniland’s warehouse, including
on May 7, 2010 when Hayes approached plaintiff in an aggressive
manner, threatening violence, and plaintiff had to leave work as
a result. 1
(Doc. #1, ¶ 14(i).)
On May 11, 2010, Hayes, while
talking to another employee, used a racial expletive in plaintiff’s
presence, which plaintiff believed was directed to him.
¶ 14(j).)
(Id. at
On May 28, 2010, a Sunniland employee also used a racial
expletive in plaintiff’s presence.
1
(Id. at ¶ 14(k).)
Plaintiff
Plaintiff alleges that he “left work on multiple occasions
to avoid confrontations with Defendant, T.C. Hayes.” (Doc. #1, ¶
24.)
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asserts that he reported each of these unwelcome incidents to
Ortegon but nothing was done.
Plaintiff alleges that he was
demoted as a result of his complaints on June 14, 2010, and
thereafter Sunniland reduced his work hours.
(Id. at ¶ 14(l)-
(p).)
On September 1, 2010, plaintiff filed an EEOC Charge of
Discrimination (EEOC Charge) with the Florida Commission on Human
Relations based upon race and retaliation. 2
(Doc. #1, ¶ 14(q).)
Plaintiff alleges Ortegon reduced his hours after he filed the
EEOC Charge.
(Id. at ¶ 14(s).)
On April 3, 2013, Ortegon told
plaintiff that he was terminated because he was a “no-call/noshow.”
(Id.
at
¶
14(t).)
Plaintiff
alleges
this
was
in
retaliation for plaintiff’s EEOC Charge as other white employees
were not terminated for the same actions.
proximate
result
of
defendants’
(Id.)
actions,
As a direct and
plaintiff
suffered
monetary damages as well as emotional pain and mental anguish.
(Id. at ¶ 15.)
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
2
Plaintiff attaches the EEOC Charge to his Complaint as
Exhibit B (Doc. #1-1) and incorporates the allegations contained
therein. The EEOC’s decision after investigation and Notice of
Right to Sue (Docs. ##1-2 – 1-3) are also attached to the
Complaint.
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that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted).
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id. at 555, 127 S. Ct. 1955.
See
also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
This requires “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth”, Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare
recitals
of
the
elements
of
a
cause
of
supported by mere conclusory statements, do not suffice.”
556 U.S. at 678.
with
a
action,
Iqbal,
“Factual allegations that are merely consistent
defendant's
liability
fall
short
of
being
facially
plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th
Cir.
2012)
(internal
quotation
marks
and
citations
omitted).
Thus, the Court engages in a two-step approach: “When there are
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well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an
entitlement to relief.”
Iqbal, 556 U.S. at 679.
A. Individual Liability
Plaintiff alleges that Ortegon is individually liable under
42 U.S.C. § 1981 and the Civil Rights Act of 1964 as amended, 42
U.S.C.
§
2000e,
et
seq.,
(Title
VII)
as
a
result
discrimination against plaintiff on the basis of race.
of
his
Ortegon
moves to dismiss the Title VII claims (Counts I & IV) with
prejudice, arguing that as an individual – not an employer – he
cannot be held liable as a matter of law.
(Doc. #27, pp. 3-4.)
Plaintiff responds that Title VII provides individual liability
for supervisors under agency principles, which he has alleged.
(Doc. #34, pp. 5-7.)
Title VII prohibits employers from discriminating against
individuals with respect to compensation, terms, conditions, or
privileges of employment because of the individual’s race, color,
religion, sex, or national origin.
42 U.S.C. § 2000e–2(a)(1).
Title VII defines an “employer” as “a person engaged in an industry
affecting commerce who has fifteen or more employees . . . and any
agent of such a person.”
42 U.S.C. § 2000e(b).
An individual
employee or supervisor who does not quality as an “employer” may
not be held personally liable under Title VII regardless of whether
the employee is a public entity or private company.
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Dearth v.
Collins, 441 F.3d 931, 933 (11th Cir. 2006); Busby v. City of
Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (individual capacity
suits under Title VII are inappropriate; relief is to be found
from the employer).
Here,
his
former
IV
against
Ortegon, individually, will be dismissed with prejudice.
Because
“employer,”
plaintiff
has
Sunniland.
brought
suit
Therefore,
against
Counts
I
and
the Court has determined that Ortegon may not be held individually
liable under Title VII, it need not address Ortegon’s further
argument
that
plaintiff
failed
to
exhaust
his
administrative
remedies prior to filing suit under Title VII against Ortegon.
B. Hostile Work Environment
Sunniland also moves to dismiss Count I on the basis that
plaintiff’s allegations are not so severe or pervasive as to
support a claim of hostile work environment.
(Doc. #27, p. 5-9.)
Plaintiff alleges to the contrary.
The “discriminat[ion]” prohibited by Title VII includes the
creation of a hostile work environment.
FSB
v.
Vinson,
477
U.S.
57,
65-66
See Meritor Sav. Bank,
(1986).
A
hostile
work
environment claim under Title VII is established upon proof that
“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.”
Harris v. Forklift Sys., Inc., 510
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U.S. 17, 21 (1993) (internal citations omitted); Pa. State Police
v. Suders, 542 U.S. 129, 133 (2004).
Specifically, plaintiff must
allege that: (1) he belongs to a protected group; (2) he has been
subject to unwelcome harassment; (3) the harassment must have been
based on a protected characteristic of the employee, such as race;
(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 such environment under either a theory of
vicarious or direct liability.
Adams v. Austal, U.S.A., L.L.C.,
754 F.3d 1240, 1248-49 (11th Cir. 2014) (citation omitted); Reeves
v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir.
2010) (en banc).
The totality of the circumstances must be
considered when determining whether the allegedly discriminatory
conduct
is
sufficiently
severe
or
pervasive,
including
the
conduct’s “frequency . . .; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether
it
performance.”
unreasonably
interferes
with
an
employee’s
work
Reeves, 594 F.3d at 808-09 (quoting Harris, 510
U.S. at 21).
Applying
these
principles,
the
Eleventh
Circuit
has
consistently held that a pattern of rude and insensitive remarks,
and/or isolated instances of a more severe nature, are insufficient
to establish a hostile work environment.
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Alhallaq v. Radha Soami
Trading, LLC, 484 F. App’x 293, 295 (11th Cir. 2012) (“Title VII
is not a ‘general civility code’ and does not make actionable
ordinary workplace tribulations.”).
For example, in Barrow v. Ga.
Pac. Corp., the Eleventh Circuit held that the district court did
not
err
in
environment
granting
claim
summary
even
judgment
though
the
against
a
plaintiffs’
hostile
work
supervisors
repeatedly referred to them using racial slurs and occasionally
threatened them with racially-motivated physical violence.
F. App’x 54, 57 (11th Cir. 2005).
144
See also Alhallaq, 484 F. App’x
at 296 (affirming dismissal of a Muslim employee’s hostile work
environment claim where employee alleged that employer referred to
her as “dirty” and told her to “go to Hell” and “burn in Hell”).
Under this standard, after reviewing the Complaint and taking
all plaintiff’s allegations as true, the Court finds that plaintiff
has
insufficiently
pled
that
the
sufficiently severe or pervasive.
alleged
harassment
was
The Complaint reflects that
plaintiff worked for Sunniland since 2007 without incident until
April 22, 2010, when plaintiff alleges that Ortegon made one
racially-offensive joke in plaintiff’s presence.
14(g).)
which
an
(Doc. #1, ¶
Plaintiff also alleges one other instance in May 2010 in
employee
uttered
a
racial
expletive
in
plaintiff’s
presence that plaintiff overheard and believed was directed to
him.
(Id. at ¶ 14(j).)
Plaintiff further alleges that he was the
topic of racial jokes and use of the “n” word by Hayes on multiple
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occasions, which were reported to Ortegon.
although
plaintiff
alleged
that
Hayes
(Id. at ¶ 14(h).)
approached
him
in
And
an
aggressive and threatening manner on May 7, 2010, after which he
had to leave work, and likewise had to leave work on “multiple
occasions,” there is no indication that these confrontations were
specifically
motived
plaintiff’s race.
by
racial
animus
or
done
on
account
of
(Id. at ¶ 14(i).)
While these incidents might have been frequent for a short
period of time, it appears that they were isolated to a three to
four month period in 2010 over plaintiff’s nearly six years of
employment
with
Sunniland.
Plaintiff’s
Complaint
alleges
no
further acts of harassment based upon race after plaintiff filed
his EEOC Charge in September 2010, and before his termination
nearly three years later on April 3, 2013.
Based upon the totality
of the circumstances, this is not the kind of conduct that has
been held to be severe or pervasive.
See, e.g., Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998) (noting that the standards
for judging hostility are sufficiently demanding to filter out
“sporadic use of abusive language”).
Count I will be dismissed
with leave to amend as to Sunniland.
III.
Finally, the Court notes that plaintiff, who is proceeding in
forma pauperis but represented by counsel, has not obtained service
of process on defendant Hayes.
The United States Marshal Service
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has been unable to complete service and counsel has not followed
up.
(Doc. #14.)
Therefore, plaintiff will be required to show
cause why defendant Hayes should not be dismissed for failure to
execute service of process within the time allotted under Fed. R.
Civ. P. 4(m).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Defendants’ Motion to Dismiss Counts I & IV (Doc. #27)
is GRANTED to the extent that Counts I & IV against defendant
Ortegon are dismissed with prejudice.
Count I against defendant
Sunniland is dismissed without prejudice.
2.
Plaintiff may file an Amended Complaint within FOURTEEN
(14) DAYS in accordance with this Opinion and Order.
3.
Plaintiff shall show cause within FOURTEEN (14) DAYS of
this Opinion and Order why defendant Theodore Cleveland Hayes
should not be dismissed for failure to prosecute.
DONE and ORDERED at Fort Myers, Florida, this
November, 2016.
Copies:
Counsel of Record
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3rd
day of
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