Napier v. American Federation of Government Employees, AFL-CIO et al
Filing
28
ORDER Granting in Part 8 Defendant Local 547's Motion to Dismiss. Plaintiff's causes of action for color-based discrimination and hostile work environment are dismissed for failure to exhaust administrative remedies; the remainder of Defendant's motion is denied. Signed by Judge Elizabeth A. Kovachevich on 9/10/2014. (rjm)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
IRA NAPIER,
Plaintiff,
v.
Case No. 8:13-CV-1577-T-17TBM
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, et al„
Defendants.
/
ORDER GRANTING IN PART DEFENDANT LOCAL 547’S MOTIONS TO DISMISS
This matter comes before the Court pursuant to Defendant’s, American Federation
of Government Employees, AFL-CIO Local 547 (“Local 457”), Motion to Dismiss, (Doc. #
8), filed on October 10, 2013, and Plaintiff’s, IRA NAPIER (“Plaintiff’), Response. (Doc. #
11). For the reasons set forth below, the Defendant’s motion is GRANTED in part.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), a Plaintiffs complaint must provide
a “short and plain statement of the claim showing that the pleader is entitled to relief.” A
Defendant may move to dismiss a complaint under Federal Rule of Civil Procedure
12(b)(6) for “failure to state a claim on which relief can be granted.” To survive a Rule
12(b)(6) motion to dismiss, a plaintiffs complaint must include “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 570
(2007). “While a complaint attacked by a [Rule] 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiffs obligation to provide grounds of his [or her]
entitlement] to relief requires more than labels and conclusions, and a formulaic recitation
Case No. 8:13-CV-1577-T-17TBM
of the elements of a cause of action will not do.” Id. at 555 (second alteration in original)
(citation omitted) (internal quotation marks omitted).
On a Rule 12(b)(6) motion to dismiss, a court must “accept the factual allegations
in the complaint as true and construe them in the light most favorable to the plaintiff.”
Alvarez v. Attorney Gen. for Fla.. 679 F.3d 1257, 1261 (11th Cir. 2012). Courts follow a
two-pronged approach when considering a motion to dismiss: “1) eliminate any
allegations in the complaint that are merely legal conclusions; and 2) where there are
well-pleaded factual allegations, ‘assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.’” Am. Dental Ass’n v. Cigna Corp.. 605 F.3d
1283, 1290 (11th Cir. 2010) (quoting Ashcroft v. labal. 556 U.S. 662, 679 (2009)). If “the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged,” then the claim meets the “plausibility
requirement,” but it requires “more than a sheer possibility” that the allegations are true.
]d.
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned [...] accusation.” ]d. (quoting
Twomblv, 550 U.S. at 555 (citing Papasan v. Allain. 478 U.S. 265 (1986)).
STATEMENT OF FACTS AND BACKGROUND
The American Federation of Government Employees (“AFGE”) is a national union
with both public and private employees, and Local 547 is an AFGE chapter. (Doc. # 6,
ffl|4-5). From approximately 1998 to 2012, Plaintiff, characterized as a “white male,”
served as the president of Local 547. ]d. at |f3. As president, Plaintiff enjoyed a salary,
travel reimbursement, a union office, and other associated benefits. See generally, jd.
Also, Plaintiff exercised general supervision over the affairs of Local 547, and conducted
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union meetings. ]d. On June 19, 2012, AFGE National Vice President Everett Kelly, who
Plaintiff characterizes as “black,” recommended AFGE place Local 547 in a trusteeship
and remove Plaintiff as president of Local 547. id. at 1J6. AFGE placed Local 547 in
trusteeship and appointed Ms. Valyria Lewis as trustee of Local 547; Plaintiff also
characterized Ms. Lewis as a “black” official with AFGE. ]d. Soon thereafter, all officers
and stewards of Local 547 were dismissed, and the letter AFGE authored imposing
trusteeship of Local 547 contained allegedly false charges of misconduct against Plaintiff.
Id. Plaintiff disputes any nefarious activity, insists the former “black” vice president of
Local 547 engaged in the misconduct, yet claims AFGE and Local 547 took no action
against the former “black” vice president of Local 547. ]d.
After AFGE placed Local 547 in trusteeship, Ms. Lewis caused a fraud alert to be
placed on Local 547’s bank account. ]d. at 1J7. Plaintiff claims Ms. Lewis knew of this
fraud alert, yet still allowed checks to issue to Plaintiff, which were ultimately dishonored.
]d. at Tf8. Plaintiff further claims AFGE and Local 547 failed to follow notice and procedural
requirements regarding the propriety of the trusteeship, id. at 1J11• Plaintiff alleges AFGE
took no investigatory, remedial, or disciplinary actions against either Mr. Kelly, Ms. Lewis,
or any employees acting at their behest, id. at 1J10-11.
On January 25, 2013, AFGE commenced a trial concerning the charges against
Plaintiff, id. at 1J15. Plaintiff alleges AFGE and Local 547 prevented him from obtaining
any meaningful discovery, refused to allow a court reporter to be present to make a record
of the proceedings, appointed a trial panel of three people, “none of whom were white,”
appointed a “black” prosecutor, and solely utilized “black” witnesses when “white”
witnesses had “more relevant information.” id. at ffl|16-18. Plaintiff further alleges just
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prior to the commencement of the trial, a member of the trial panel threatened to forward
an unidentified copy of the proceedings to the Department of Labor. ]d. During the trial,
Ms. Lewis and the prosecutor accused Plaintiff of collecting an unauthorized salary,
received unapproved professional insurance benefits, both of which Local 547 paid. ]d.
After the tribunal and prosecutor suggested Plaintiff committed violations of both state
and federal law, the trial was adjourned, the parties met off the record, and Ms. Kelly and
the prosecutor allegedly suggested Plaintiff should settle the charges internally within the
AFGE and Local 547, so as to avoid any criminal prosecution, and Plaintiff refused. ]d.
Leading up to February 6, 2013, Ms. Kelly and other “black” AFGE and Local 547
representatives accused Plaintiff of unauthorized travel reimbursement, improper
appointments to leadership positions, and similar criminal conduct. ]d. at ffl|24-27. Just
prior to these allegations, Plaintiff filed a complaint with the EEOC on February 4, 2013,
titled “Complaint against the AFGE and Local 547 of the AFGE for discrimination based
on race and hostile work environment based on race.” ]d. at 1J70. These allegations
continued until a second trusteeship hearing held April 2, 2013, which included a different
“black" prosecutor, and deprived Plaintiff of his right to counsel and to present a witness
with material testimony to refute the allegations. ]d. at UH28-31. In the interim, on March
8, 2013, Plaintiff supplemented his EEOC complaint, id. at 1J70. Ultimately, AFGE and
Local 547 issued an opinion on April 26, 2013, finding Plaintiff guilty of various charges
and suggested remedies, id. at 1J34. Plaintiff appealed the decision, and the appellate
body rejected his appeal in late June. id. Plaintiff then filed a second complaint with the
EEOC for retaliation on June 27, 2013, titled “Complaint against the AFGE and Local 547
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of the AFGE for discrimination based on race or color, hostile work environment based
on race or color, retaliation, and hostile work environment based on retaliation.” ]d.
Plaintiff now brings suit against both AFGE and Local 547 for: discrimination based
on race or color (Count I); hostile work environment based on race or color (Count II);
retaliation (Count III); hostile work environment based on retaliation (Count IV); and
injunctive relief (Count V). See generally, jd. Local 547 has moved to dismiss the claims
for lack of subject matter jurisdiction and failure to state a claim. (Doc. # 8).
DISCUSSION
A. Subject Matter Jurisdiction - Exhaustion of Administrative Remedies
1. Plaintiff’s Alleged Failure to Name Local 547 in the EEOC Complaints
Local 547 first moves to dismiss Plaintiffs Complaint for failing to exhaust his
administrative remedies. (Doc. # 8, p.6). Local 547 argues Plaintiff failed to name Local
547 in either his February or July Equal Employment Opportunity Commission (“EEOC”)
complaints, and failed to notice or serve Local 547 with these complaints. ]d. at 9. Plaintiff
opposes this contention, and describes in great detail the efforts and lengths he went to
exhaust all available administrative remedies. (Doc. #11, pp.8-11).
Plaintiff complied with the administrative exhaustion requirement. The purpose of
the administrative exhaustion requirement is to provide the EEOC the information
necessary to investigate and resolve disputes between an employee and employer.
Wade v. Secretary of Army. 796 F.2d 1369, 1377 (11th Cir. 1986). This process simply
requires the employee to cooperate and provide, in good faith, all relevant, available
information for the claim. ]d. (citing Manoiapane v. Adams. 661 F.2d 1388, 1390-1391
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(D.C. Cir. 1981) (holding that the agency should play a major role in developing the
record)). On February 4,2013, Plaintiff filed an EEOC complaint with the following subject
Complaint against the AFGE and Local 547 of the AFGE for
discrimination based on race and hostile work environment
based on race.
(Doc. # 11-1) (emphasis added).
In that EEOC complaint, Plaintiff described the
relationship between AFGE and Local 547; Plaintiffs position and financial arrangement
with Local 547; and Plaintiffs complaints against both AFGE and Local 547 conduct for
racially-based discrimination and the hostile work environment created therefrom. ]d.
Based on the complaints in the February 4, 2013, letter, the EEOC instructed Plaintiff to
fill out a charge of discrimination based on race. (Docs. ## 11-5, 11-9). On March 8,
2013, Plaintiff sent a supplement to the EEOC with the following subject title:
Supplement to Complaint against the AFGE and Local 547 of
the AFGE for discrimination based on race and hostile work
environment based on race.
(Doc. # 11-2) (emphasis added). In that supplement, Plaintiff recounts the February 4,
2013, EEOC complaint, the parties complained of, and the procedural posture. ]d. The
supplement describes further conduct Plaintiff deemed discriminatory and the hostility
created therefrom, both national AFGE and Local 547 members allegedly created. ]d.
On June 27, 2013, Plaintiff filed a second EEOC complaint with the following
subject title:
Complaint against the AFGE and Local 547 of the AFGE for
discrimination based on race or color, hostile work
environment based on race or color, retaliation, and hostile
work environment based on retaliation.
(Doc. # 11-3) (emphasis added). In that EEOC complaint, Plaintiff recounted the earlier
February 4, 2013, complaint, and further actions Plaintiff deemed retaliatory based on the
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allegations contained in the February 4, 2013, complaint. Jd. Based on the complaints in
the June 27, 2013, letter, the EEOC instructed Plaintiff to fill out a charge of discrimination
based on race. (Docs. ##11-6, 11-9).
These documents clearly demonstrate Plaintiff presented factual allegations to the
EEOC with respect to both AFGE and Local 547. (Docs. ##11-1 through 11-9). Further,
the allegations contained in these documents clearly demonstrate Plaintiff’s compliance
with the good faith requirement to provide the EEOC with all relevant and available
information. Wade. 796 F.2d at 1369; Manaiapane. 661 F.2d at 1390-1391. Further, a
plaintiff may bring a Title VII claim against unnamed parties in an EEOC charge when
equity requires, such as when those unnamed parties are “sufficiently implicated in the
discrimination alleged in [a plaintiff’s] original charges to have reasonable triggered an
EEOC investigation of the part. Jackson v. Seaboard Coast Line Railroad Company. 678
F.2d 992 (11th Cir. 1982) (citing Terrell v. U.S. Pipe & Foundry Co.. 644 F.2d 1112 (5th
Cir. 1981)). Therefore, as a matter of law, to exhaust his administrative remedies, Plaintiff
need not specifically name Local 547, and that omission, either by Plaintiff or the EEOC,
does not rob this Court of subject matter jurisdiction.
2. Plaintiffs Alleged Deficient Exhaustion of Administrative Remedies
for Color-based Discrimination
Local 547 next argues Plaintiffs failure to specifically “check the box” for color as
opposed to race in his EEOC complaints precludes Plaintiff from now bringing an action
for discrimination based on the color of his skin, due to his failure to exhaust administrative
remedies. (Doc. # 8, pp.8-9). Local 547 argues this should result in dismissal of Counts
I and II of Plaintiff’s First Amended Complaint. ]d. Plaintiff opposes this argument, and
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contends the nature of color- and race-based discrimination overlaps, and this indiscrete
nebulous provides an exception for Plaintiff’s procedural posture. (Doc. #11).
Plaintiff did not properly exhaust his administrative remedies with respect to colorbased discrimination. Plaintiff contends with respect to the EEOC Compliance Manual
and “various cases,” race and color overlap, but are not necessarily synonymous. (Doc.
#11, n.2). Plaintiff indeed cites one case from the Eastern District of Tennessee, wherein
that court analyzed whether color and race were synonymous for the purposes of a Title
VII claim. Atkins v. Denso Manufacturing of Tennessee. Inc.. 2011 WL 5023392 (E.D.
Tenn. 2011). In that case, the court clearly demonstrated the contrast between colorand race-based claims of discrimination and retaliation—a color-based claim of
discrimination “‘arises when the particular hue of the plaintiff’s skin is the cause of the
discrimination,’ such as in the case where a dark-color African-American individual is
discriminated against in favor of a light-color African-American individual. 2011 WL
5023392 at *10 (citing Campbell v. Hamilton County. 23 Fed.Appx. 318 (6th Cir. 2001)
(quoting Brvant v. Bell Atlantic Maryland. Inc.. 288 F.3d 124, 132 n. 5 (4th Cir. 2002)).
Plaintiff concedes this case is “likely...more a ‘race’ than a ‘color’ case.” (Doc. #11).
Nowhere in his EEOC complaints did Plaintiff discuss a claim based on the
pigmentation, complexion, hue, shade, or tone of his skin. In fact, in the February 4,
2013, EEOC complaint, Plaintiff did not reference the term “color” or any equivalent for
the basis of the discrimination; however, he used the term “race" or “racial” at least six (6)
times, and always framed the issue as a “black” individual discriminating against Plaintiff
for being “white," or a “black” individual not to pursuing similar accusations against “black”
employees. (Doc. #11-1). Further, in his March 8, 2013, supplement, Plaintiff did not
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reference the term “color” or any derivation thereof; however, he used the term “race” or
“racial” at least nine (9) times, and always framed the issue as a “black” or “white.” (Doc.
# 11-2). Finally, in his June 27, 2013, EEOC complaint, Plaintiff, for the first time, began
referencing both color- and race-based discrimination, despite acknowledging that the
February 4, 2013, EEOC complaint solely referenced race-based discrimination. (Doc. #
11-3). Although he acknowledged the basis for the prior EEOC complaint, Plaintiff failed
to conclusively state any basis for the sudden addition of color-based discrimination. ]d.
For these reasons, Plaintiff failed to sufficiently notify the EEOC of, and administratively
exhaust, his color-based claim, and the color-based discrimination in Counts I and II is
stricken; however, Counts I and II still survive for race-based discrimination.
3. The Civil Service Reform Act (“CSRA”) Does Not Preempt Plaintiffs
Causes of Action
Local 547 next attacks subject matter jurisdiction through preemption; Local 547
argues the CSRA confers sole jurisdiction to the Federal Labor Relations Authority
(“FLRA”) to regulate certain matters against federal sector unions. (Doc. # 8, pp. 9-11).
Plaintiff opposes this argument, and contends the CSRA does not preempt his causes of
action because his causes of action are based on employment claims, rather than the
distinguished causes of action discussed in Local 547’s cited authority. (Doc. #11).
Plaintiff further alleges the argument is meritless because in 2006, a United States District
Judge in the Southern District of Mississippi rejected this same argument. ]d.
The CSRA does not preempt Plaintiff’s causes of action. The cases Defendant
cited fall short of establishing the proposition that the CSRA preempts all federal causes
of action against a federal union. The CSRA preempts federal causes of action resulting
from unfair labor practices. Karahalios v. National Federation of Federal Employees.
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Local 1263. 489 U.S. 527, 533-535 (1989). These cases, however, contemplate the
federal union breaching its duty to represent a union member, which results in an unfair
labor practice, rather than when the union commits an adverse employment action
against a union member employed as an officer or employee of the union. Cf., Warren v.
Local 1759. AFGE. 764 F.2d 1395 (11th Cir. 1985) (suit involving civilian federal
employee attempting to invoke federal jurisdiction based on union’s duty of fair
representation); Johnson v. Principi. 2004 WL 2044258 (N.D. III. 2004) (suit involving
union discriminating against member in representational affairs); Johnson v. Goper. 2001
WL 1511294 (M.D. Pa. 2001) (suit involving union discriminating in representing the
interests of union employees).
Defendants have not provided any authority for their
proposed expansion of preemption under the CSRA, while Plaintiff has provided authority
expressly restricting preemption under the CSRA. See Wilson v. Harvev. 156 Fed.Appx.
55, 57 (10th Cir. 2005) (holding CSRA, 5 U.S.C. § 2302(d)(1) does not preempt Title VII
with respect to federal employees and affords jurisdiction to district courts). This Court,
relying on Plaintiffs authorities, finds the CSRA does not preempt Plaintiffs causes of
action, and maintains jurisdiction over the present case.
4. Plaintiff’s Allegedly Broadly-Charged
Sufficiently Charged Administratively
Causes
of Action
Were
Local 547 finally attacks subject matter jurisdiction based on the stark difference
between: 1) the periods of time and activity disclosed to the EEOC; and 2) the periods of
time and activity contained in the Amended Complaint. (Doc. # 8). Local 547 argues this
elaboration and expansion of the causes of action is precluded due to Plaintiffs failure to
disclose same to the EEOC and exhaust his administrative remedies thereby. ]d. Local
547 objects to Plaintiff including paragraphs 24-50 of his Amended Complaint into any
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race discrimination and harassment charges, as well as including paragraphs 1-50 into
his retaliation claim, which all occurred before April 26, 2013. ]d. Plaintiff opposes this
argument, and contends every fact and issue pled in the Amended Complaint was derived
from the EEOC complaints. (Doc. #11).
Plaintiff sufficiently exhausted his administrative remedies with respect to his race
discrimination and harassment charges. While it is true Plaintiff incorporates behavior
after the February 4, 2013, EEOC complaint, Plaintiff supplemented that complaint on
March 8, 2013, (Docs. ## 11-2, 11-9), and further alleged the discriminatory and
retaliatory behavior in his June 27, 2013, EEOC complaint.
The entire purpose for
exhausting administrative remedies is to make “a good faith effort to comply with the
regulations and, particularly, to provide all the relevant, specific information available to
him or her. Wade. 796 F.2d at 1376; Crawford v. Babbitt. 186 F.3d 1322, 1326 (11th Cir.
1999). This allows the agency “every opportunity to investigate and resolve the dispute[,]
all that is intended by the exhaustion requirement.” Wade. 796 F.2d at 1378. This Court
is less concerned with which box Plaintiff checked, and more concerned with the
allegations contained in the complaints and notice to the EEOC. Plaintiff’s Amended
Complaint does not elaborate beyond the facts contained within the two EEOC complaints
and the EEOC supplement, and all of these documents alleged forms of race
discrimination and hostile work environment.
(Docs. ## 11-2 through 11-5).
The
contention that an EEOC investigator’s failure to specifically check a box removes any
notice to the Defendants is unpersuasive—the information and allegations were readily
available to the Defendants. Jd. Therefore, this Court finds Plaintiff complied with the
requirements of administrative exhaustion.
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B. Adequacy of Plaintiff's Claims as Pled in the Amended Complaint
1. Local 547 is an Employer
Local 547 first argues it does not meet the Title VII statutory definition for
“employer,” as Local 547 and AFGE are separate legal entities, and the Court cannot
consider the combination of AFGE and Local 547 employees to satisfy the 15-employee
prerequisite. (Doc. # 8). Plaintiff concedes Local 547 does not employ 15 individuals,
but contends the Court may consider the combination of AFGE and Local 547 employees
given the totality of the circumstances—namely, AFGE placing Local 547 in a trusteeship
and AFGE employees conducting the trial against Plaintiff. (Doc. #11). However, the
Court need not address this issue, as “the threshold number of employees for application
of Title VII is an element of a plaintiffs claim for relief, not a jurisdictional issue.” Arbauqh
v. Y&H Corporation. 546 U.S. 500, 516 (2006). Therefore, while not waived, this issue is
not ripe at the dismissal stage, and is appropriately raised at summary judgment. As
Plaintiff suggests, there are alternative bases upon which an otherwise unqualified
employer could come within the scope of Title VII employers, and Plaintiff is entitled to
conduct discovery to explore those bases as an element of his claims.
2. The “Elected Official” Argument Lacks Merit
Local 547 next argues Plaintiff is an elected official, rather than an employee, of
Local 547, and therefore cannot assert any property or contractual right under 42 U.S.C.
§ 1981. (Doc. # 8). Local 547 suggests the Court should apply the “elected official”
exemption to every elected position in an organization. Local 547 cites generally a 1900
Supreme Court case discussing elected officials and the lack of property rights associated
with those positions. Tavlor and Marshall v. Beckham. 178 U.S. 548, 577 (1900). Local
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547 also cites generally a Second Circuit Court of Appeals opinion regarding a publiclyelected official serving in his capacity as the chancellor of a school district. Velez v. Lew .
401 F.3d 75, 75 (2d Cir. 2005). Local 547 provides no authority to suggest this exemption
extends beyond officials holding public office—national, state, and local representatives,
chancellors, or similar politicians—and generally alleges Plaintiff has no contractual
relationship with, or property right to his position with, Local 547. These arguments are
entirely meritless and the Court declines further discussion.
3. Plaintiff States a Claim for Hostile Work Environment
Local 547 finally argues Counts II and IV insufficiently state a claim. (Doc. # 8).
Local 547 attempts to trivialize Plaintiff’s alleged hostile work environment to issues solely
involving “offensive jokes, slurs, physical assaults or threats, ridicule or mockery, insults
or put-downs, or offensive objects or pictures.” id. at p. 15-16. Local 547 correctly cites
Mendoza v. Borden. Inc.. 195 F.3d 1238 (11th Cir. 1999), for this proposition, and even
includes the “not limited to” language preceding the non-exhaustive list, but then urges
the Court to dismiss Counts II and IV because Plaintiffs allegations do not fall within this
non-exhaustive list. As Plaintiff correctly points out over the span of two pages, a hostile
work environment could plausibly arise from the following:
1.
2.
3.
4.
5.
The alleged improper charging and removal of Plaintiff as
president of Local 547 at the disciplinary trial and the two
trusteeship hearings;
The allegedly improper conduct which occurred during the
disciplinary trial and the two trusteeship hearing
proceedings;
Defendant allegedly holding a hearing on charges against
Plaintiff without giving Plaintiff notice of the hearing;
Defendant allegedly seizing and then withholding
exculpatory union documents Plaintiff needed for trial;
The alleged improper removal of Plaintiff from office and
the alleged banning of Plaintiff from office for life;
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6.
7.
8.
9.
10.
11.
12.
13.
14.
Allegedly targeting Plaintiff for baseless charges;
Allegedly treating Plaintiff as a criminal;
Allegedly seeking criminal charges against Plaintiff;
Alleged repeated threats of prosecution;
Alleged repeated stigmatizing statements against Plaintiff
at union meetings;
Alleged repeated efforts to extort Plaintiff to settle false
charges;
Alleged stigmatizing notices to Local 547’s bank about
Plaintiff;
Allegedly dishonoring a legitimate check to Plaintiff; and
Allegedly refusing to pay Plaintiffs appropriate unionrelated expenses.
(Doc. # 11). This non-exhaustive list Plaintiff generously provided to the Court more than
satisfies the pleading requirement for a hostile work environment at the dismissal stage.
Local 547 continues with an assertion that Plaintiff failed to allege the harassment was
completely unrelated to his race or protected activity.
(Doc. # 8). This argument is
meritless; Plaintiff alleged throughout his Amended Complaint that these actions were
based on race and protected activity. (Doc. # 6). Finally, Local 547 urges the Court to
find that the harassment Plaintiff encountered was “neither severe nor pervasive.” (Doc.
# 8). This argument is meritless. This determination contains both a subjective and
objective component. Reeves v. C.H. Robinson Worldwide. Inc.. 594 F.3d 798, 809 (11th
Cir. 2010). Analyzed in the light most favorable to the non-moving party, by filing his
EEOC complaints, and alleging same in the Amended Complaint, Plaintiff clearly
demonstrated a subjective perception that the harassment was so severe and pervasive
so as to alter the terms or conditions of his employment. Turning to whether this belief
was objectively reasonable, a court should consider the allegedly discriminatory conduct’s
“frequency; its severity; whether it is physically threatening or humiliating [...] and whether
it unreasonably interferes with an employee’s work performance.” id. at 808-809. While
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this consideration is typically undertaken at summary judgment, accepting as true and
construing the facts in the light most favorable to the non-moving party, Local 547’s
treatment of Plaintiff easily rises to the level severe and pervasive—among other actions,
Local 547 cast Plaintiff as a criminal; Local 547 denied Plaintiff meaningful discovery to
defend against criminal allegations; Local 547 dishonored Plaintiffs checks; Local 547
stigmatized Plaintiffs reputation to a local bank; and Local 547 removed Plaintiff from his
elected office. (Doc. #11).
Accordingly, it is ORDERED that:
1. Plaintiff’s causes of action for color-based discrimination and hostile work
environment are DISMISSED for failure to exhaust administrative remedies;
2. The remainder of Defendant’s Motion to Dismiss Plaintiffs Amended Complaint
is DENIED.
3. The Defendant is ORDERED to reply to the Plaintiff’s Amended Complaint
within fifteen (15) days of this Order.
DONE and ORDERED in Chambers, in Tampa, Florida, t h is / ^ a y of September,
2014.
E L IZ A B E T H A ^ ^ C H E V IC H
UNITED STATES DISTRICT JUDGE
Copies to:All Counsel and Parties of Record
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