Brown v. Beverly Construction Company

Filing 47

ORDER AND REASONS - defendant's partial motion 12 to dismiss is granted. Plaintiff's hostile work environment claim isdismissed.. Signed by Chief Judge Sarah S. Vance on 3/12/15. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JEROME BROWN

CIVIL ACTION

VERSUS
NO: 14-1373
BEVERLY INDUSTRIES, LLC

SECTION: R(5)

ORDER AND REASONS
Defendant Beverly Industries, LLC moves to dismiss plaintiff
Jerome Brown's pro se claim for hostile work environment under
Title VII of the Civil Rights Act of 1964.1

For the following

reasons, the Court GRANTS the motion.

I. Background
This is a hostile work environment and retaliation suit by a
former employee against his former employer.

Defendant Beverly

employed plaintiff, Jerome Brown, on its pipe fitting crew from May
3, 2013 until it terminated his employment on August 7, 2013.
Plaintiff has filed a complaint, an opposition to defendant's
partial motion to dismiss, and a motion for summary judgment.2
Because plaintiff is a pro se litigant, the Court considers the
facts alleged in plaintiff's complaint, opposition, and motion for
summary judgment.

See Clark v. Huntleigh Corp., 119 F. Appx. 666,

1

R. Doc. 12.

2

R. Docs. 1, 15, & 37.

667 (5th Cir. 2005).
Plaintiff

alleges

the

following

facts

in

his

complaint.

Plaintiff was hired by defendant at some time in May 2013 as a lead
man on the pipe fitting crew.3

Shortly after, defendant promoted

plaintiff to pipe crew foreman.4

In his opposition, plaintiff

clarifies that he was promoted to foreman at some time in June
2013.5

At a later point, defendant moved plaintiff to the position

of foreman of the flat fence line.6

At this point, an African

American co-worker, Brian Scott, and two white co-workers, Blake
Chauvenaux and Jeremy Muskenberger, subjected plaintiff to racially
discriminatory name calling.7

Specifically, plaintiff states that

they called him "Nigger" and "Uncle Tom ass nigger."8

Plaintiff

also alleges that they called him "Bitch" and "Motherfucker."9
In August 2013, plaintiff reported the name calling to his
supervisor, Doug Flint.10

3

R. Doc. 1 at 2.

4

Id.

5

R. Doc. 15 at 7.

6

R. Doc. 1 at 2.

7

Id.

8

Id. at 2.

9

Id.

10

Mr. Flint responded, "That is how they

Id. at 2-3.
2

talk around here," and took no further action.11

Plaintiff also

reported the conduct to Denny Broud, Mr. Scott's supervisor, but
again

no

action

terminated

was

plaintiff

taken.12
after

he

On

August

complained

7,

2013,

about

violation of machine safety operation protocols.13

a

Mr.

Flint

co-worker's
Separately,

plaintiff alleges that he was terminated after reporting the racial
remarks.14
Describing

the

effect

of

the

alleged

remarks,

plaintiff

alleges: "It was very difficult for me to perform my daily duties
as a lead man on the pipe crew because [of the] racial[l]y hostile
work environment, harassment and racial discrimination from coworkers."15
Plaintiff

alleges

additional

facts

in

his

opposition.16

Contrary to plaintiff's complaint, where he alleges that Mr. Flint
took no action after plaintiff reported Mr. Scott's name calling,
plaintiff now states that Mr. Flint called Mr. Scott into his
office to discuss the name calling two weeks before plaintiff was

11

Id. at 3.

12

Id.

13

Id. Plaintiff states that he reported one of his coworkers for sleeping and using drugs while operating heavy
equipment. Id.; R. Doc. 15 at 10.
14

R. Doc. 1 at 2, 5.

15

Id. at 3.

16

R. Doc. 15.
3

terminated, at which time Mr. Flint spoke to Mr. Scott about the
name calling and had Mr. Scott sign a disciplinary form, which was
placed in his employee file.17

Again, contrary to plaintiff's

complaint where he alleges that Mr. Scott, Mr. Muskenberger, and
Mr. Chauvenaux commenced the name calling at the same time,
plaintiff now alleges that Mr. Chauvenaux and Mr. Muskenberger did
not

engage

in

the

name

calling

disciplined for his conduct.18

until

after

Mr.

Scott

was

Given that Mr. Scott was not

disciplined until two weeks before plaintiff was terminated, this
presents a maximum of a two-week window during which plaintiff was
potentially

subject

Chauvenaux.

to

remarks

by

Mr.

Muskenberger

and

Mr.

In spite of these specific allegations, plaintiff

alleges that he endured the name calling throughout the entire
course of his employment.19

Plaintiff also now states that he

reported the conduct to other individuals, including his manager,
Brian Kilgen, and another supervisor, Byron Dupre.20
Plaintiff also now alleges new facts surrounding an incident
between himself and his co-workers on the day he was terminated.
Specifically,

17

plaintiff

states

that

in

his

presence,

Mr.

Id. at 3.

18

Id. at 20 ("After Brian Scott was disciplined for his
conduct[,] co-worker's Jeremy Muskenberger and Blake Chauvenaux
decided that they would get in on the name calling.")
19

Id.

20

Id. at 5.
4

Chauvenaux, while using a front loader, knocked over another coworker's materials.21

Plaintiff then asked Mr. Chauvenaux why he

was destroying company property, to which Mr. Chauvenaux responded,
"Fuck him," referring to the co-worker whose materials he had
knocked over.22

At this point, Mr. Chauvenaux attempted to run

plaintiff over with the front loader, but plaintiff avoided the
collision.23
Plaintiff first reported the incident to his supervisor, Mr.
Flint.24
ongoing

Shortly later, plaintiff reported the incident and the
racial

remarks

separately

to

supervisor, and an unnamed "safety man."25

Terry

Bolden,

another

After plaintiff relayed

his account in Mr. Bolden's office in the presence of Mr. Bolden
and the "safety man," Mr. Bolden called Mr. Flint and other senior
managers into his office for a meeting.26

Plaintiff was not asked

to stay for the meeting.27 Plaintiff alleges that Mr. Flint and the
other senior managers gave him "a really dirty look" as he left Mr.

21

Id. at 14.

22

Id. at 15.

23

Id.

24

Id.

25

Id. at 15-16.

26

Id. at 16.

27

Id.
5

Bolden's office.28
Some forty-five minutes later, Mr. Flint and Mr. Kilgen
confronted plaintiff and called him "every name in the book,"
including "stupid nigger," while telling him to "get [his] black
ass of [their] property."29
plaintiff a termination form.30

At this point, Mr. Flint handed
Plaintiff alleges that defendant

retaliated against him for reporting the ongoing racial remarks to
upper management.31
Plaintiff attaches a Disciplinary Form and Separation Notice
to his complaint.32

Both documents list "reduction in work force"

as the reason for plaintiff's termination.33
In his motion for summary judgment, plaintiff alleges for the
first time that he first reported the alleged conduct to his
supervisor, Willie Dolan.34

According to plaintiff, Mr. Dolan took

no action and advised plaintiff to ignore the name calling.
Plaintiff states that Mr. Dolan told him his co-workers were upset

28

Id.

29

Id. at 17.

30

Id.

31

Id. at 19.

32

See R. Doc. 1-2 at 7 & 12.

33

Id.

34

R. Doc. 37 at 2.
6

because he was selected over them for a position.35
Defendant has filed a partial motion to dismiss seeking
dismissal

of

plaintiff's

hostile

work

environment

claim.36

Defendant argues that the racial discrimination and harassment
alleged by plaintiff is not actionable because it amounts only to
isolated remarks, and therefore was neither severe nor pervasive.

II. Legal Standard
Federal Rule of Civil Procedure 8(a) requires a pleading that
states a claim for relief to contain "a short and plain statement
of the claim showing that the pleader is entitled to relief." Fed.
R. Civ. P. 8(a)(1).

To survive a Rule 12(b)(6) motion to dismiss,

the plaintiff must plead sufficient facts "to state a claim to
relief that is plausible on its face."

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
554, 570 (2007)). A claim is facially plausible when the plaintiff
pleads facts that allow the court to "draw the reasonable inference
that the defendant is liable for the misconduct alleged."
556 U.S. at 678.

Iqbal,

A court must accept all well-pleaded facts as

true and must draw all reasonable inferences in favor of the
plaintiff.

35

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239, 244

Id.

36

Defendant does not seek dismissal of plaintiff's
retaliation claim.
7

(5th Cir. 2009).

The Court is not bound to accept as true legal

conclusions couched as factual allegations.

Iqbal, 556 U.S. at

678.
A legally sufficient complaint must establish more than a
"sheer possibility" that the plaintiff's claim is true.

Id.

It

need not contain detailed factual allegations, but it must go
beyond labels, legal conclusions, or formulaic recitations of the
elements of a cause of action.

Twombly, 550 U.S. at 555.

In other

words, the face of the complaint must contain enough factual matter
to raise a reasonable expectation that discovery will reveal
evidence of each element of the plaintiff's claim.
F.3d at 256.

Lormand, 565

If there are insufficient factual allegations to

raise a right to relief above the speculative level, Twombly, 550
U.S. at 555, or if it is apparent from the face of the complaint
that there is an insuperable bar to relief, Jones v. Block, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 & n.9 (5th
Cir. 2007), the claim must be dismissed.
When examining a motion to dismiss a pro se complaint, courts
ensure the complaint is "held to less stringent standards than
formal pleadings drafted by lawyers."

Clark, 119 F. Appx. at 667

(citations and quotation marks omitted).

In considering a motion

to dismiss, a district court may generally not "go outside the
complaint," Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir.
2003), but when reviewing a pro se complaint, a district court is
8

"required to look beyond the [plaintiff's] formal complaint and to
consider

as

amendments

subsequently filed."

to

the

complaint

those

materials

Howard v. King, 707 F.2d 215, 220 (5th Cir.

1983); see also Clark, 119 F. Appx. at 667.

III. Discussion
For the reasons that follow, the Court grants defendant's
motion to dismiss plaintiff's hostile work environment claim.
To state a claim under Title VII based on race discrimination
creating a hostile working environment, the plaintiff must show:
(1) that he belongs to a protected group; (2) that he was subjected
to unwelcome harassment; (3) that the harassment complained of was
race-based; and (4) that the harassment affected a term, condition,
or privilege of employment.

White v. Government Employees Ins.,

457 Fed. App'x 374, 379-80 (5th Cir. 2012).

When the alleged

harasser was a coworker, "the plaintiff must also prove that [his]
employer knew or should have known about the harassment and failed
to take prompt remedial action."
plaintiff

must

prove

Id. at 380.

negligence

on

behalf

In other words, the
of

the

employer.

E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d 444, 452 (5th Cir. 2013)
(quoting Vance v. Ball State Univ., 133 S.Ct. 2434 (2013) (Thomas,
J. concurring)).
Race-based harassment affects a term, condition, or privilege
of employment when it is "sufficiently severe or pervasive to alter
9

the conditions of the victim's employment and create an abusive
working environment."
omitted).

The

Id. (internal quotation marks and citation

harassment

must

be

"both

objectively

and

subjectively abusive." Hockman v. Westward Commc'ns, LLC, 407 F.3d
317, 325 (5th Cir. 2004) (citing Harris v. Forklift, Systems, Inc.,
510 U.S. 17, 21-22 (1993); Butler v. Ysleta Indep. Sch. Dist., 161
F.3d 263, 269 (5th Cir. 1998)).

Objectively offensive harassment

is the type a reasonable person would find hostile or abusive.
Harris, 510 U.S. at 21.

See

In determining whether harassment is

objectively so severe or pervasive to alter the conditions of the
plaintiff's employment, Courts look to "the frequency of the
discriminatory conduct, its severity, whether it is physically
threatening or humiliating (or whether it is a mere offensive
utterance),

and

whether

it

victim's work performance."

unreasonably
Id.

interferes

with

the

Courts also consider whether the

alleged conduct undermines the plaintiff's workplace competence.
Butler, 161 F.3d at 270.
of the circumstances.

Ultimately, courts look to the totality

Boh Bros. Const. Co., 731 F.3d at 453.

The Fifth Circuit has previously noted the Supreme Court's
guidance that "Title VII . . . is not a 'general civility code,'
and 'simple teasing,' offhand comments, and isolated incidents
(unless

extremely

serious)

will

not

amount

to

discriminatory

changes in the 'terms and conditions of employment.'"

Lauderdale

v. Tex. Dep't of Criminal Justice, 512 F.3d 157, 163 (5th Cir.
10

2007) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998)).

Still,

the

Fifth

Circuit

has

recognized

that

"[d]iscriminatory verbal intimidation, ridicule, and insults may be
sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment that
violates Title VII."

Walker v. Thompson, 214 F.3d 615, 626 (5th

Cir. 2000) (quoting Wallace v. Texas Tech Univ., 80 F.3d 1042, 1049
n.9 (5th Cir. 1996)).
In a recent case cited by defendant, the Fifth Circuit upheld
the district court's grant of summary judgment in favor of a
defendant on a hostile work environment claim when the harassment
was not severe or pervasive because the racist remarks were
isolated and often not directed at the plaintiff.

White v.

Government Employees Ins. Co., 457 Fed. Appx. 374, 381 (5th Cir.
2012) (holding that cumulatively, co-worker's reference to a client
as a "nigger" in plaintiff's presence, co-worker's reference to an
office as "ghetto" or "FEMA trailer," and co-worker's comment that
plaintiff "always wanted to be a white female" did not rise to the
level of severity or pervasiveness necessary to support a hostile
work environment claim).

The Fifth Circuit has reached the same

conclusion when reviewing cases presenting similar facts.

See,

e.g., Johnson v. TCB Const. Co., 334 Fed. Appx. 666, 671 (5th Cir.
2009) (finding insufficient evidence to establish a hostile work
environment when a supervisor told plaintiff "he was just 'like a

11

damn

nigger'";

plaintiff

"offered

no

evidence

concerning

its

objective effect on his 'work performance'"; and while supervisor
frequently used the term "nigger," "these comments were not uttered
in [plaintiff's] presence" and there was not evidence "that they
affected his job.").
In contrast, the Fifth Circuit found sufficient evidence for
a plaintiff's hostile work environment claim to survive summary
judgment when the plaintiff endured years of racial epithets,
including "nigger" and "little black monkey."
619-22.

Walker, 214 F.3d at

See also Spriggs v. Diamond Auto Glass, 242 F.3d 179, 182,

185 (4th Cir. 2001) (finding that "frequently and highly repugnant
insults," including the word, "nigger," "were sufficiently severe
or pervasive (or both) to cause a person of ordinary sensibilities
to perceive that the work atmosphere . . . was racially hostile");
Daniels v. Essex Group, Inc., 937 F.2d 1264, 1266 (7th Cir. 1991)
(finding

summary

judgment

for

defendant

inappropriate

where

plaintiff endured "nigger" jokes over ten years, his co-workers
hung a "human-sized dummy with a black head" from a doorway, and
someone scrawled "KKK" and "All niggers must die" onto the bathroom
walls).
Defendant

moves

to

dismiss

plaintiff's

hostile

work

environment claim because, according to defendant, plaintiff does
not establish that the alleged harassment based on race was
plausibly

so

severe

or

pervasive

12

that

it

affected

a

term,

condition, or privilege of plaintiff's employment. Defendant bases
its argument on its categorization of the alleged racial harassment
as

isolated

remarks.

Because

defendant

does

not

challenge

plaintiff's hostile work environment claim on any other basis, the
Court, for the purposes of evaluating defendant's motion, assumes
plaintiff's claim meets the other requirements to state a hostile
work environment claim.

Therefore, the Court evaluates only

whether plaintiff sufficiently pleads that the alleged harassment
affected a term, condition, or privilege of his employment.
The Court finds that plaintiff does not plead sufficient facts
to sustain a claim for hostile work environment.

Specifically,

plaintiff's allegations do not plausibly demonstrate that the
alleged remarks were so objectively and subjectively severe and
pervasive as to alter a term, condition, or privilege of his
employment.
As an initial matter, in addition to the obviously raciallymotivated remarks alleged by plaintiff, plaintiff alleges that his
co-workers called him "Bitch" and "Motherfucker."

These remarks

are not based on race and therefore cannot sustain a race-based
hostile work environment claim.

See Baker v. FedEx Ground Package

System Inc., 278 Fed. Appx. 322, 329 (5th Cir. 2008) (holding that
"[t]he phrases 'fired girl walking' and 'stupid are not 'based on
race' and, thereby, do no sustain a race-based hostile work
environment claim").

13

Plaintiff's complaint, opposition, and motion for summary
judgment

present

a

moving

fragmentary allegations.

target

full

of

inconsistent

and

Plaintiff conclusorily alleges that he

endured the racial remarks throughout the entire course of his
employment.

But the specific facts alleged by plaintiff are

inconsistent with this statement. Plaintiff states that Mr. Scott,
an African American co-worker, did not commence the name calling
until

June

2013,

when

plaintiff

was

promoted,

and

that

Mr.

Chauvenaux and Mr. Muskenberger, white co-workers, did not commence
the name calling until Mr. Scott was disciplined, which plaintiff
separately

revealed

terminated.

was

Examining

not

until

these

two

weeks

specific

before

facts,

he

contrary

was
to

plaintiff's blanket assertion that he endured constant harassment
for the entire length of his employment, plaintiff specifically
alleges that Mr. Scott began the name calling in June 2013, and
that Mr. Chauvenaux and Mr. Muskenberger began the name calling, at
most, two weeks before he was terminated.

Finally, the only other

alleged name calling is that by Mr. Flint and Mr. Kilgen, which
plaintiff alleges occurred during a single interaction in the final
minutes of his employment.

This is an isolated incident.

Likewise, plaintiff's allegations regarding the severity of
the

harassment,

humiliating,
performance

and
are

whether
whether

it
it

non-existent

was

physically

interfered
or

14

with

conclusory.

threatening
his

or

workplace

Specifically,

plaintiff alleges: "It was very difficult for me to perform my
daily duties as a lead man on the pipe crew because [of the]
racial[l]y

hostile

work

environment,

discrimination from co-workers."37

harassment

and

racial

Plaintiff offers no additional

facts as to the effect of the harassment.38 Without more, plaintiff
fails to allege plausibly that the harassment was objectively or
subjectively severe or pervasive.
Drawing all reasonable inferences in favor of the adequately
plead facts in plaintiff's complaint and opposition, plaintiff
alleges that an African American co-worker engaged in racially
derogatory name calling over approximately a two month period and
that he was disciplined, that two white co-workers engaged in the
same name calling for approximately two weeks, and that two other
white supervisors engaged in racially derogatory name calling
during a single encounter on the day plaintiff was terminated.
Even if the Court accepts as true plaintiff's blanket allegation
that he endured a full three months of harassment, plaintiff's
allegations pale in comparison to those where the Fifth Circuit has
found that harassment could be severe and pervasive.
Walker, 214 F.3d at 619-22.

37

See, e.g.,

The Court does not suggest that the

R. Doc. 1 at 3.

38

The Court notes that plaintiff alleges that Mr.
Chauvenaux attempted to hit him with a front loader, but
plaintiff does not allege that this incident was racially
motivated.
15

alleged remarks are not incendiary and highly offensive, but here,
the time period involved and the nature of the remarks indicate
that the conduct was not so extreme as to be severe or pervasive.
See DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591,
595-96 (5th Cir. 1995) (noting that "the 'mere utterance of an . .
. epithet which engenders offensive feelings in an employee,'"
without more, is insufficient to support a finding of hostile work
environment) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67
(1986)).
Moreover, besides plaintiff's conclusory allegation that the
remarks made performing his work duties "very difficult," plaintiff
alleges no facts as to the effect of the harassment.

For example,

there is no indication from plaintiff that the remarks were
physically threatening or humiliating or of how they specifically
impacted his work performance.

Further, plaintiff had other

complaints about the work environment unrelated to the alleged
remarks, such as unsafe work practices like workers' sleeping,
using drugs, and joking around while on the work site.

These

allegations of other conduct go to disputes with defendant that
have nothing to do with plaintiff's race.
For these reasons, the Court finds that plaintiff fails to
allege sufficient facts to demonstrate that the alleged harassment
was plausibly severe and pervasive.

Accordingly, plaintiff fails

to state a claim for hostile work environment.

16

IV. Conclusion
For the foregoing reasons, defendant's partial motion to
dismiss is granted.

Plaintiff's hostile work environment claim is

dismissed.

New Orleans, Louisiana, this 12th day of March, 2015.
__

_________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

17