Olmeda v. Cameron International Corporation et al

Filing 30

ORDER & REASONS granting in part and denying in part 16 Motion to Dismiss for Failure to State a Claim, as stated herein. Signed by Judge Martin L.C. Feldman on 11/5/2014. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ANDY C. OLMEDA

CIVIL ACTION

v.

NO. 14-1904

CAMERON INTERNATIONAL
CORPORATION, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is PMG, Inc.'s Rule 12(b)(6) motion to
dismiss.

For the reasons that follow, the motion is GRANTED in

part and DENIED in part.
Background
This lawsuit arises from allegations that, after complaining
to his employers that he was the target of racial harassment and
death

threats

by

white

male

co-workers

and

supervisors,

the

plaintiff, who is of Spanish descent, was fired the day after he
complained that the same co-worker and supervisor followed him from
work and shot at him while he drove away in his car.
At this stage of the proceedings, the Court takes as true the
allegations in the complaint. Andy C. Olmeda was hired in May 2013
to work as a machinist for Cameron International Corporation in St.
Mary

Parish.

PMG,

Inc.

received

a

commission

for

supplying

employees like Mr. Olmeda to Cameron. While he worked at Cameron,
1

Mr. Olmeda complained to both Cameron and PMG that he was subject
to racial harassment at work.

In particular, Mr. Olmeda was

perceived as Mexican by some co-workers and supervisors. Two of his
co-workers or supervisors, both white males, named Scott Carrington
and Billy Perez called Mr. Olmeda a "Beaner" (a derogatory word for
someone of Mexican descent) and a "stupid f--king Mexican" and
"constantly made gross, outrageous, humiliating racial comments
about"

Mr.

Olmeda.

Neither

Cameron

nor

PMG

had

any

anti-

discrimination or retaliation policy, or, at least, did not advise
or train their employees with respect to any such policy.
In addition to being a target of harassment, Mr. Olmeda also
received death threats from Carrington, who while at work drafted
and circulated a list entitled "10 Ways to Kill Andy".1

The death

threats escalated in the early morning of September 14, 2013: when
Olmeda left work in his car, he was followed in a truck driven by
Perez with Carrington riding as passenger; as they drove by,
Carrington fired at Olmeda's car with a shotgun, riddling his car
with bullets, damaging his car, and causing Olmeda distress.2 The
next day, after Mr. Olmeda reported the incident, his employment

1

This list was "reported to supervisors at Cameron and
PMG and nothing was done to investigate or protect" Mr. Olmeda.
According to Olmeda, it was well known at work that Carrington was
unstable.
2

Carrington and Perez pled guilty to criminal charges
associated with the shooting incident; Olmeda says that they are
currently incarcerated.
2

was terminated, even though he had never received any write-ups or
negative performance evaluations.

Cameron and PMG allegedly fired

Mr. Olmeda because they did not want him working there and could
not protect him.3
On February 25, 2014 Mr. Olmeda filed a charge of national
origin discrimination and retaliation with the EEOC; he alleged
that he complained daily to supervisors and human resources, to no
avail, and that, ultimately, Perez and Carrington followed him and
shot at him.

He finally writes "I was fired in retaliation."4

The

EEOC issued Olmeda a right to sue letter on June 11, 2014.
On

August

20,

2014

Olmeda

sued

Cameron

International

Corporation; PMG, Inc. d/b/a a/k/a Personal Management Group d/b/a
PMG; Billy Perez; and Scott Carrington.

Seeking declaratory,

injunctive, and monetary relief, Olmeda purports to advance six
causes of action, which he describes in the complaint as:
(1) retaliation due to sexual5 harassment, in violation

3

It is unclear from the complaint precisely when Olmeda
was fired; at one point he alleges "[i]mmediately after finding out
[Olmeda] filed an EEOC complaint and [Olmeda] again complained of
racial discrimination and being shot at, [Olmeda] was terminated by
joint employers and common enterprises PMG and Cameron", but Olmeda
also alleges that he was fired on September 15, 2013 and that he
did not file an EEOC complaint until February 2014.
4

On February 27, 2014 Mr. Olmeda alleges that he filed
another charge with the EEOC (as well as with the Human Rights
Commission), this time charging that he was fired in retaliation
for complaining about employment discrimination.
5

Presumably, the reference to "sexual" harassment is a
typographical error in the complaint.
3

of Title VII and negligent screening, hiring, and
supervising; (2) unlawful discriminatory employment
practices under Title VII and Louisiana state law; (3)
lack of policy for racial harassment, discrimination and
retaliation and violence in the workplace in violation of
state law; (4) assault and battery [and] intentional
infliction [of emotional distress by] Dwight Caton; (5)
compensatory and punitive damages under Title VII are
allowed; (6) vicarious liability against ... Cameron and
PMG ... strictly liable as joint tortfeasors in a common
enterprise.
PMG now seeks dismissal of Olmeda's claims.
I.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.

Such a motion is rarely

granted because it is viewed with disfavor.

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)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed.R.Civ.P. 8).

"[T]he

pleading standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation."

Id. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

4

In considering a Rule 12(b)(6) motion, the Court “accepts ‘all
well-pleaded

facts

as

true,

favorable to the plaintiff.’”

viewing

them

in

the

light

most

See Martin K. Eby Constr. Co. v.

Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).

But, in

deciding whether dismissal is warranted, the Court will not accept
conclusory allegations in the complaint as true.
at 1050.

Kaiser, 677 F.2d

Indeed, the Court must first identify allegations that

are conclusory and, thus, not entitled to the assumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A corollary: legal
conclusions “must be supported by factual allegations.”

Id. at

678. Assuming the veracity of the well-pleaded factual allegations,
the Court must then determine “whether they plausibly give rise to
an entitlement to relief.” Id. at 679.
“‘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 Iqbal, 556 U.S. at 678)(internal
quotation marks omitted).

“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) (citations and footnote omitted).

“A claim has facial

plausibility when the plaintiff pleads factual content that allows

5

the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

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.”).

This

is

a

“context-specific

task

that

requires the reviewing court to draw on its judicial experience and
common sense.”

Id. at 679.

“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.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).

“[A] plaintiff’s obligation to provide the

‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”

Twombly, 550 U.S. at

555 (alteration in original) (citation omitted).
II.
PMG contends that Olmeda's claims against it must be dismissed
for failure to state a claim; in particular, PMG contends that
Olmeda fails to plead facts sufficient to support a "common
enterprise" theory of liability between PMG and Cameron, and that
Olmeda fails to plead facts sufficient to link the alleged conduct
of

Carrington

allegations

--

and

Perez

that

PMG

to

PMG.

is

an

Olmeda

employer

counters

of

Olmeda,

that
that

his
he

complained to both Cameron and PMG about the alleged harassment and

6

its progression, and that, after he was shot at by Carrington and
Perez, Cameron and PMG fired Olmeda -- provide sufficient factual
matter, accepted as true, to state plausible claims for harassment
in the workplace and retaliation.

The Court agrees.

A.
Given that the plaintiff clarifies (or abandons) certain
claims

by

way

of

his

opposition

papers,

it

is

necessary

to

streamline which theories of liability are alleged against PMG.6
Olmeda concedes that his "Fourth and Sixth Causes of Action are
inapplicable to Defendant PMG"; thus, the Court grants PMG's motion
to dismiss insofar as it seeks dismissal of Olmeda's Fourth and
Sixth

Causes

infliction
liability).

of

of

Action

emotional

(for

assault,

distress

and

battery,

intentional

vicarious

or

strict

Olmeda also contends that he "is not pursuing PMG

under a common enterprise theory, but rather as Olmeda's direct
employer."

Thus, any theory of liability premised upon a "common

enterprise" theory must likewise be dismissed.
B.
Olmeda premises PMG's alleged liability on its role as one of
his employers; thus, the Court turns to address whether Olmeda has
stated

a

plausible

claim

for

retaliation

and

for

unlawful

employment discrimination or harassment in the workplace under

6

Olmeda's "causes of action" are inartfully drafted, to
say the least.
7

Title VII.7

PMG does not challenge on technical sufficiency

grounds Olmeda's allegations that he was subject to racial (or
national origin) discrimination or harassment; that Cameron and PMG
failed to implement any workplace anti-harassment policy; or that
he was fired by Cameron and PMG after complaining about the alleged
discrimination or harassment.

Rather, PMG ostensibly submits only

that Olmeda has failed to allege that PMG had the ability to
supervise or to otherwise control Cameron's employees, and that
this is fatal to Olmeda's ability to state a claim for harassment
or retaliation.8

Based on the facts as alleged, however, PMG fails

to carry its burden to show that no plausible claim for workplace
discrimination or retaliation has been alleged against it.
Insofar as it is unclear from the allegations in the complaint
whether PMG or Cameron (or both) employed Olmeda, PMG fails to
persuade that this ambiguity alone condemns Olmeda's employment
retaliation claim against PMG.

PMG does not dispute that it is an

"employer" within the meaning of Title VII. Nor could it; consider
42 U.S.C. § 2000e-3(a):

7

The Cout notes that PMG's alleged lack of antidiscrimination or retaliation policy is a component of his Title
VII claims, not a separate claim for relief as Olmeda entitles it
(his "Third Cause of Action").
And, Olmeda's "Fifth Cause of
Action" is not a substantive cause of action but, rather, a
description of damages that he submits are recoverable. The Court
is not bound by the plaintiff's conclusory labels.
8

PMG also contends that Olmeda advances contradictory
allegations concerning who had control over Olmeda and his working
conditions.
8

(a) Discrimination for making charges, testifying,
assisting, or participating in enforcement proceedings
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees or
applicants for employment, for an employment agency, or
joint
labor-management
committee
controlling
apprenticeship or other training or retraining, including
on-the-job training programs, to discriminate against any
individual, or for a labor organization to discriminate
against any member thereof or applicant for membership,
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.9
Moreover, PMG neither disputes that Olmeda alleges that it (PMG) is
an employer, nor invokes authority that might dilute this statutory
provision,

which

plainly

provides,

as

the

case

literature

interprets, that "[n]o employer may retaliate against someone who
makes or supports a charge of discrimination against any employer."
See Flowers v. Columbia College Chicago, 397 F.3d 532, 534 (7th Cir.
2005)(noting that "identifying the 'employer' in a borrowed-servant
situation can be difficult" and "[p]erhaps both entities usefully
could

be

deemed

employers

original, citations omitted).

in

such

a

situation")(emphasis

in

Olmeda pleads as much.

Olmeda alleges that he was employed by both Cameron and PMG,

9

As the Supreme Court has observed, Title VII defines an
employee "in a completely circular [fashion]," as "an individual
employed by an employer." Nationwide Mutual Ins. Co. v. Darden,
503 U.S. 318, 323-24 (1992)(citing 42 U.S.C. § 2000e(f)); see also
Juino v. Livinston Parish Fire District No. 5, 717 F.3d 431, 434
(5th Cir. 2013)(noting that Darden instructs that common law agency
principles apply when Congress uses employment terms without
defining them).
9

that he complained to both Cameron and PMG that he was being
harassed and that his life was being threatened at work, that
neither company investigated his complaints, and that, ultimately,
he was fired after he complained that Carrington and Perez had shot
at him after he drove away from Cameron's facility.10

Short, plain

statements, if proved, suggesting entitlement to relief on his
retaliation claim against PMG.11
Accordingly, PMG's motion to dismiss is GRANTED in part
(insofar as Olmeda's state law claims for assault, battery, and
intentional infliction of emotional distress, and any other "cause
of action" that fails to constitute a substantive claim are hereby
dismissed as to PMG) and the motion is DENIED in part (insofar as

10

Olmeda suggests in his opposition papers that PMG signed
his paycheck; although this fact may be meaningful in resolving, at
some future stage in this litigation, any factual controversy
concerning Olmeda's employment status, cf. Nationwide Mutual Ins.
Co. v. Darden, 503 U.S. 318, 323-24 (1992), the Court notes that
this "fact" does not appear in the complaint, nor would it be
dispositive of the defendant's motion.
11

PMG does not single out for dismissal Olmeda's workplace
harassment and retaliation claims; it focuses on the common
enterprise theory abandoned by the plaintiff in his opposition
papers. Nevertheless, the ambiguity respecting employment status
likewise favors the plaintiff on his workplace harassment claim.
PMG does not dispute that Olmeda's factual allegations would
satisfy his prima facie case and otherwise meet the severe or
pervasive test applicable to workplace harassment. Instead, PMG
argues that it did not have control over Cameron's employees -- the
alleged harassers, Carrington and Perez. But PMG's role concerning
Olmeda's employment is a classic fact dispute; if it is shown that
Cameron had complete control over Olmeda's working environment,
then perhaps PMG will be entitled to judgment as a matter of law at
a future stage of these proceedings.
10

Olmeda has stated sufficient facts to support plausible claims for
workplace harassment and retaliation).
New Orleans, Louisiana, November 5, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

11