George v. Diversified Foods and Seasonings, Inc.

Filing 18

ORDER that the 4 Motion to Dismiss pursuant to rules 12(b)(1) and 12(b)(6) is GRANTED. Signed by Magistrate Judge Daniel E. Knowles, III on 1/31/14. (plh, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARILYN GEORGE

CIVIL ACTION

VERSUS

NO. 13-5388

DIVERSIFIED FOODS AND SEASONINGS, INC.

SECTION "F" (3)

ORDER
On January 15, 2014, the Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) [Doc.
#4] came on for oral hearing before the undersigned. Present were Thomas Hogan on behalf of
plaintiff and Mark Carver on behalf of defendant. After the oral hearing, the Court took the motion
under advisement. Having reviewed the motion, the opposition and the case law, the Court rules
as follows.
I.

Background
Because neither party provided the Court with a background section, the Court turns to the

allegations of the complaint. Defendant Diversified Foods and Seasonings, Inc. ("DFS") hired
plaintiff Marilyn George in August 26, 2006 at $10.50/hour to work at its Madisonville, Louisiana
plant. DFS promoted her on September 25, 2006, and she received a raise to $12.17/hour. DFS then
terminated her as part of a reduction in force in March 2008 but later re-hired her that same month
at a pay rate of $10.58/hour. Two months later, DFS again terminated her as part of a reduction in

force but again re-hired her three months later at a pay rate of $9.25/hour. On January 30, 2012,
DFS promoted George to Prep Lead at a pay rate of $12.00/hour.
After George's promotion, DFS promoted Jerome Walker to Production Manager, thus
becoming a member of management. There was gossip in the workplace that Walker was involved
romantically with an hourly employee, Velma Buckler. Walker believed George to be the source
of the gossip. David Gallo, the night shift supervisor, informed George that Walker had told Gallo
that George had reported him to management.
During and after Hurricane Isaac, the Madisonville plant operated on a limited basis.
Buckler was allowed to work, but George was not. On September 13, 2012, DFS informed George
that she had failed to carry out assigned tasks. With regard to said tasks, George informed
management that she could not perform them because there were no containers available to receive
the blended ingredients, and the machine dicer was broken. George documented the incident and
placed a copy of her report in the day-shift binder and also delivered a copy to the office of Babby
Doley, another supervisor.
The next day, George reported to work. After four to five hours of work, Walker summoned
her to his office. Another supervisor was also present. Walker then terminated her, informing
George that he was not at liberty to inform her why DFS was terminating her. The separation notice
indicated that the reason for the termination was her inability to perform. Said notice also informed
George that she was not eligible for re-hire.
George filed her Charge of Discrimination with the Equal Employment Opportunity
Commission ("EEOC") on February 1, 2013. The EEOC issued George a right-to-sue letter. She
then sued DFS in this Court under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5

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et seq.
II.

Law and Analysis
A.

Legal Standard

Federal courts are courts of limited jurisdiction and possess power over only those cases
authorized by the United States Constitution and federal statutes. Coury v. Prot, 85 F.3d 244, 248
(5th Cir. 1996). If a district court lacks jurisdiction over the subject matter of a plaintiff's claims,
dismissal is required. See Fed. R. Civ. P. 12(b)(1). The lack of subject matter jurisdiction may be
raised at any time during the pendency of the case by any party or by the court. See Kontrick v.
Ryan, 540 U.S. 443, 456 (2004) (“A litigant generally may raise a court's lack of subject-matter
jurisdiction at any time in the same civil action, even initially at the highest appellate instance.”);
McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir. 2005) (“[A]ny federal court may raise
subject matter jurisdiction sua sponte.”).
In ruling on a Rule 12(b)(1) motion to dismiss, the Court may rely on (1) the complaint
alone, presuming the allegations to be true, (2) the complaint supplemented by undisputed facts, or
(3) the complaint supplemented by undisputed facts and by the court's resolution of disputed facts.
Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). The party asserting
jurisdiction bears the burden of establishing that the district court possesses jurisdiction. Ramming
v. United States, 281 F.3d 158, 161 (5th Cir. 2001). A court's dismissal of a case for lack of subject
matter jurisdiction is not a decision on the merits, and the dismissal does not ordinarily prevent the
plaintiff from pursuing the claim in another forum. See Hitt v. City of Pasadena, 561 F.2d 606, 608
(5th Cir. 1977).

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The standard of review applicable to motions to dismiss under Rule 12(b)(1) is similar to that
applicable to motions to dismiss under Rule 12(b)(6). See Williams v. Wynne, 533 F.3d 360, 364-65
n.2 (5th Cir. 2008) (observing that the Rule 12(b)(1) and Rule 12(b)(6) standards are similar, but
noting that applying the Rule 12(b)(1) standard permits the Court to consider a broader range of
materials in resolving the motion).
Rule 12(b)(6) allows a party to move for dismissal of a complaint when the plaintiff has
failed to state a claim upon which relief can be granted. Such a motion “‘is viewed with disfavor
and is rarely granted.’” See Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)
(quoting Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050
(5th Cir. 1982)).
“‘To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.’" Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)) (internal quotation marks
omitted). “A claim has facial plausibility when the pleaded factual content allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks, citations, and footnote omitted).
The United States Supreme Court suggests a “two-pronged approach” to determine whether
a complaint states a plausible claim for relief. Iqbal, 556 U.S. at 678. First, the Court must identify
pleadings that are conclusory and thus not entitled to the assumption of truth. Id. A corollary: legal
conclusions “must be supported by factual allegations.” Id. Second, for those pleadings that are

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more than merely conclusory, the Court assumes the veracity of those well-pleaded factual
allegations and determines “whether they plausibly give rise to an entitlement to relief.” Id.
Claims that are merely conceivable will not survive a motion to dismiss; claims must be
plausible. Twombley, 550 U.S. at 570; see also Iqbal, 556 U.S. at 678 (“The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully”). “Where a complaint pleads facts that are merely consistent with
a defendant's liability, it stops short of the line between possibility and plausibility of entitlement
to relief.” Iqbal, 556 U.S. at 678 (internal quotations omitted). In the end, evaluating a motion to
dismiss is a “context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Id.
B.

Application of Law to Fact
1.

George's Discrimination and Disparate Impact Claims

Under Rule 12(b)(1), DFS first moves to dismiss these claims on the ground that George
failed to exhaust her administrative remedies. It is well-established law that courts may not entertain
claims brought under Title VII for which an aggrieved party has not first exhausted her
administrative remedies by filing a charge of discrimination with the EEOC. See Taylor v. Books
A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002). The filing of an EEOC charge “is a
precondition to filing suit in district court.” Id. at 379. “The filing of an EEOC charge triggers an
investigation and a process pursuant to which voluntary compliance may be obtained and
discriminatory practices and policies eliminated. Requiring the plaintiff first to state her allegations
of employment discrimination in an EEOC charge serves 'Congress' intention to promote
conciliation rather than litigation in the Title VII context.'" Polk v. U.S. Airways, Inc., Civ. A. No.

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H-08-1663, 2009 WL 455261, *2 (S.D. Tex. Feb. 20, 2009) (quoting Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742 (1998)).
Civil complaints filed under Title VII may only encompass “discrimination like or related
to allegations contained in the EEOC charge and growing out of such allegations during the
pendency of the case before the EEOC." Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd. of
San Antonio, Tex., 40 F.3d 698, 711 (5th Cir. 1994). Thus, the failure to assert a claim of
discrimination in an EEOC charge and/or its lack of development in the course of a reasonable
investigation of that charge precludes the claim from later being brought in a civil suit. Id.
“A discriminatory act alleged in a lawsuit but not included in an EEOC charge is not ‘like
or related to’ acts that are alleged in an EEOC charge simply because both are based on the same
type of discrimination.” Turner v. St. Luke's Episcopal Health Sys., Civ. A. No. H-06-1668, 2008
WL 706709, *8 (S.D. Tex. Mar.14, 2008). In order for a particular “alleged discriminatory act to
fall within the scope of an EEOC charge, there must be some factual relationship between the act
and the acts described in the charge, beyond the fact that both involve the same employer and the
same general type of discrimination.” Id.
Here, George's Charge of Discrimination read:
I was hired by the above-named employer on August 28, 2006. On September 14,
2012, I was discharged as a Prep Lead earning $12.00 per. Management learned
about my supervisor's romantic involvement with another employee. My supervisor
believed that I was the source of the complaint to management. The company
employs more than 15 employees.
No reason was given for my discharge. However, my supervisor was recently
promoted to lead Production Manager and made the comment to other employees
that he would be making some changes. I understood him to mean that he would be
looking for a way to discharge me.
I believe I have been discriminated against because of my race, Black, sex
and in retaliation for having being associated with disciplinary action against a
manager in violation of Title VII of the Civil Rights Act of 1964, as amended.
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(Ex. A, att'd to Def.'s Mem. Supp. Mot. Dismiss).
DFS contends that the charge does not include any conduct to demonstrate that DFS
terminated George because of her race or gender or that DFS treated persons outside the protected
class more favorably than George. DFS argues that the charge merely alleges that George was
terminated in retaliation for her supervisor's alleged belief that she was the source of the complaint
against him to management about his romantic involvement with a co-employee. DFS recognizes
that George checked the boxes for "race" and "sex" on the charge but maintains that checking off
said boxes is insufficient.
George now stipulates that the charge does not reflect a claim for race and/or gender
discrimination and only supports a claim for retaliation. The Court thus finds that DFS's arguments
have merit. A Title VII complaint is limited to the scope of the EEOC investigation that can
reasonably be expected to grow out of the charge of discrimination. Thomas v. Tex. Dep't Of
Criminal Justice, Institutional Div., 220 F.3d 389, 395 (5th Cir. 2000); Young v. City of Houston,
906 F.2d 177, 179 (5th Cir. 1990). In other words, any issues that George did not bring before the
EEOC for consideration and were not investigated by the EEOC during its investigation can not be
considered by a district court. This Court interprets what is properly embraced in review of a TitleVII claim somewhat broadly, not solely by the scope of the administrative charge itself, but by the
scope of the EEOC investigation which “can reasonably be expected to grow out of the charge of
discrimination.” Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993); Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). The only absolutely essential elements of a timely
charge of discrimination are the allegations of fact contained therein. Sanchez, 431 F.2d at 463. The
crucial element in a charge of discrimination is the set of facts alleged, not the charging party's

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conclusion concerning the employer's motivation. Id. at 464 n.6.
Given George's stipulation, the case law cited above and the Court's review of the Charge
of Discrimination, the Court finds that there are no facts alleged in the charge to support a claim for
race and/or gender discrimination. Accordingly, the Court finds that George has failed to exhaust
her administrative remedies as to these claims. They are dismissed.
2.

George's Retaliation Claim

DFS also moves to dismiss George's retaliation claim because George never engaged in
protected activity. DFS maintains that George never reported Walker's and Buckler's relationship
to management and her subjective belief that such conduct constituted sexual harassment is
insufficient. It also contends that even had she reported the relationship, Title VII does not protect
an employee who reports a relationship between co-employees.
To establish a prima facie case of unlawful retaliation under Title VII, George must show
(1) that she engaged in an activity protected by Title VII, (2) that an adverse employment action
occurred, and (3) that a casual link existed between the protected activity and the adverse
employment action. Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996) (citing McMillan v.
Rust Coll., Inc., 710 F.2d 1112, 1116 (5th Cir. 1983)).
George contends that the complaint alleges a viable cause of action for retaliation "for having
been perceived as opposing a practice made unlawful by Title VII-sex harassment in the form of
quid pro quo." [Doc. #13 at p. 3]. George maintains that she must only establish that she had a good
faith and reasonable belief that the conduct was unlawful. She argues that DFS's policy prohibited
sexual harassment in the workplace and further that DFS would not retaliate against her for reporting
any sexual harassment. She also notes that the complaint also alleges preferential treatment to

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Buckler in the form of overtime that was not offered to her.1
The Court finds that there is no allegation in George's complaint that she either engaged in
protected activity or that she suffered an adverse employment action because of any such protected
activity. The complaint only alleges that Walker terminated her because he believed that she was
the source of gossip about his relationship with a co-employee. An employee does not have
automatic standing to sue for retaliation because a co-worker engaged in protected activity. See,
e.g., Holt v. JTM Indus., Inc., 89 F.3d 1224, 1226-27 (5th Cir. 1996) (holding, under the Age
Discrimination in Employment Act, that husband had no claim for retaliation when he failed to
prove that he participated in his wife's activities or that he opposed the defendant's alleged
discriminatory practice). Indeed, the Court finds that there is no allegation in the complaint that any
individual – including Buckler – engaged in protected activity.
George relies on Thompson v. North American Stainless, LP, – U.S. –, 131 S. Ct. 863 (2011),
as support for her argument that Walker and DFS fired her in retaliation for opposing a practice
made unlawful by Title VII. But Thompson is inapposite. While the Court recognizes that
Thompson changed the law with regard to third-party reprisals, the Court finds that Thompson is
limited to employees who alleged that their employer retaliated against them based on the protected
activity of another closely-related employee. Id. at 868-69. There is no allegation that George and
Buckler are in any way related or even friends. And, as the Court noted, there is no allegation that

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This last argument more properly supports George's claim for disparate treatment, which
she now stipulates is not present in her charge. In any event, the Fifth Circuit has long
held that "'when an employer discriminates in favor of a paramour, such an action is not
sex-based discrimination, as the favoritism, while unfair, disadvantages both sexes alike
for reasons other than gender.'" Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 376, 382 (5th
Cir. 2003) (quoting Green v. Adm'rs of the Tulane Educ. Fund, 284 F.3d 642, 656 n.6
(5th Cir. 2002), abrogated on other grounds by Burlington N. & Santa Fe Ry. v. White,
548 U.S. 53 (2006)).

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even Buckler engaged in protected activity. Accordingly, George can not establish the first element
of her prima facie claim for retaliation.
III.

Conclusion
For the foregoing reasons,
IT IS ORDERED that the Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) [Doc.

#4] is GRANTED.
New Orleans, Louisiana, this 31st day of January, 2014.

DANIEL E. KNOWLES, III
UNITED STATES MAGISTRATE JUDGE

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