Barnes v. Quality Fab & Mechanical, L.L.C. et al
ORDER AND REASONS - defendants' motion to dismiss plaintiff's Title VII claim is DENIED. Defendants' motion to dismiss plaintiff's unjust enrichment claim is GRANTED.. Signed by Chief Judge Sarah S. Vance on 4/7/15. (jjs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
QUALITY FAB & MECHANICAL, L.L.C.,
QUALITY FAB & MECHANICAL
CONTRACTORS, INC., ST. ROSE
DRIVING RANGE, L.L.C., AND BRUCE
ORDER AND REASONS
Defendants Quality Fab & Mechanical, Quality Fab & Mechanical
Contractors, St. Rose Driving Range, and Bruce Bourgeois move the
Court to dismiss plaintiff's Title VII sexual harassment claims
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Defendants also move the Court to dismiss plaintiff's unjust
enrichment claim under Rule 12(b)(6). The Court denies defendants'
motion to dismiss plaintiff's sexual harassment claims because
plaintiff has exhausted his administrative remedies and has pleaded
sufficient facts to make out a hostile work environment claim. The
Court grants defendants' motion to dismiss plaintiff's unjust
enrichment claim because plaintiff has an alternative remedy at
Plaintiff alleges that he was hired by Bourgeois in June of
2013 to work as a assistant manager at St. Rose Driving Range.
Although he was hired as an assistant manager at the driving range,
plaintiff alleges that he regularly performed work for Quality Fab
& Mechanical and Quality Fab & Mechanical Contractors.
alleges that Bourgeois owns and operates all three corporate
Plaintiff alleges that defendants improperly classified him as
a "independent contractor" and failed to pay plaintiff overtime
when he worked more than 40 hours a week, in violation of the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206 and 207. Plaintiff
also asserts an unjust enrichment claim based on the same conduct.
plaintiff throughout the course of his employment.
Plaintiff alleges that he quit working for defendants several times
R. Doc. 1 at 2-3.
Id. at 5-6 ("The harassment took many forms and included
defendant Bourgeois telling plaintiff, 'I am going to fuck you,'
grabbing plaintiff's nipples, grabbing and slapping his butt,
calling plaintiff his 'little bitch,' telling plaintiff, 'I love
you, you mother fucker,' trying to put plaintiff's hand in his
pants or on his crotch, asking for a kiss and holding plaintiff
against the bar to kiss him, biting plaintiff on the neck,
rubbing plaintiff's neck and shoulders as well as other acts
which will be proven at trial.").
because of Bourgeois's conduct but was forced to return because he
needed the money.3
The harassment culminated in December of 2013
plaintiff's chest, and stuck his hands down plaintiff's pants.
manager, Peggy Labit, who spoke to Bourgeois about his conduct. As
a result, Bourgeois allegedly attacked plaintiff in the St. Rose
Driving Range parking lot and threatened to kill plaintiff if he
complained to anyone else. After the December incidents, plaintiff
"felt he had no alternative but to quit the job, and because he
feared bodily harm by defendant Bourgeois, to claim he was quitting
because he couldn't handle the night work."4
Plaintiff filed a Equal Employment Opportunity Commission
("EEOC") charge which identified Quality Fab & Mechanical, LLC as
In the charge worksheet, plaintiff indicated that
the alleged discrimination was based on sex and that he was
discrimination took place" section, plaintiff indicated that the
earliest discrimination took place around June 20, 2013 and the
latest discrimination took place on December 8, 2013.
Id. at 6.
Id. at 7.
R. Doc. 1-1 at 4.
plaintiff indicated that the discrimination took place from his
start date, June 20, 2013, until the day he quit, December 8, 2013,
he did not check the "continuing action" box.
plaintiff stated that he was subjected to "inappropriate touching"
by Bourgeois on December 3, 2013 and was constructively discharged
Plaintiff also alleged that "Mr. Bourgeois created a
VII . . . ."7
The EEOC sent Bourgeois, in his capacity as the
Human Resources Director of Quality Fab & Mechanical, LLC, notice
of plaintiff's EEOC charge on March 6, 2014.8
The EEOC never
attempted conciliation; it sent Plaintiff his right to sue letter
on June 11, 2014.9
On July 25, 2014, plaintiff's counsel sent Quality Fab &
Mechanical10 and Bruce M. Bourgeois a "notice of intent to seek
court action" letter under La. Rev. Stat. § 23:303C.
provided Bourgeois with notice of plaintiff's intent to initiate
physical conduct of a sexual nature" that "occurred throughout his
R. Doc. 16-1 at 18.
Id. at 5.
The letter was sent to the attention of Bruce Bourgeois
in his capacity as the registered agent of Quality Fab and
employment and culminated with egregious conduct . . . on or about
December 3, 2013."11
Defendants now move the Court to dismiss plaintiff's sexual
harassment claims and his unjust enrichment claim under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6).
A. Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) permits dismissal for
lack of jurisdiction over the subject matter of a claim. 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
Den Norske Stats Ojeselskap As v. HeereMac Vof,
241 F.3d 420, 424 (5th Cir. 2001); see also Marrera-Montenegro v.
United States, 74 F.3d 657, 659 (5th Cir. 1996).
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).
B. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is
Id. at 6-7.
plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
A court must accept all well-pleaded facts as true and must
draw all reasonable inferences in favor of the plaintiff.
v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009).
Court is not bound to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678.
A legally sufficient complaint need not contain detailed
conclusions, or formulaic recitations of the elements of a cause of
In other words, the face of the complaint must
contain enough factual matter to raise a reasonable expectation
Lormand, 565 F.3d at 257.
If there are
insufficient factual allegations to raise a right to relief above
the speculative level, or if it is apparent from the face of the
complaint that there is an insuperable bar to relief, the claim
must be dismissed.
Twombly, 550 U.S. at 555.
A. Quality Fab & Mechanical Contractors and St. Rose Driving
Range's Motion to Dismiss under Rule 12(b)(1)
Quality Fab & Mechanical Contractors and St. Rose Driving
Range move to dismiss plaintiff's sexual harassment claims against
them because plaintiff did not name either corporate defendant as
his employer or as a respondent in his EEOC charge.12
& Mechanical Contractors and St. Rose Driving Range further argue
that plaintiff failed to send them a separate "notice of intent to
seek court action" letter under La. Rev. Stat. § 23:303C.
well-settled that courts have no jurisdiction to consider Title VII
claims as to which the plaintiff has not exhausted administrative
Nat'l Ass'n of Gov't Employees v. City Pub. Serv. of San
Antonio, 40 F.3d 698, 711 (5th Cir. 1994). Thus, the Fifth Circuit
recognizes the general rule that "a party not named in an EEOC
charge may not be sued under Title VII."
840 F.2d 303, 307 (5th Cir. 1988).
Way v. Mueller Brass Co.,
This "naming requirement"
reflects Congress' preference that workplace discrimination be
addressed through voluntary conciliation in the EEOC process rather
than through adversarial proceedings in the courts.
See 42 U.S.C.
When applying the general rule, however, courts
must liberally construe Title VII's "naming requirement so as to
not frustrate claimants with needless procedural roadblocks."
R. Doc. 10-1 at 6.
E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
Accordingly, a party not named in an EEOC charge may still be sued
under Title VII "if 'an unnamed party has been provided with
adequate notice of the charge, under circumstances where the party
has been given the opportunity to participate in conciliation
proceedings aimed at voluntary compliance.'"
Id. at 483 (quoting
Eggleston v. Chi. Journeymen Plumbers Local Union No. 130, U.A.,
657 F.2d 890, 905 (7th Cir. 1981)).
See also Sedlacek v. Hach, 752
identity exists between the parties before the EEOC and the trial
Although plaintiff failed to name Quality Fab & Mechanical
Contractors and St. Rose Driving Range in his EEOC charge, the
Court finds that both corporate defendants had actual notice of the
allegations contained in the EEOC charge.
alleges, and defendants do not dispute, that all of the corporate
defendants are owned and operated by Bourgeois.13
It is further
undisputed that Bourgeois received notice of the EEOC charge.14
Thus, plaintiff's complaint and the undisputed facts demonstrate
that notice to Bourgeois and Quality Fab & Mechanical was also
R. Doc. 1 at 2-3.
The EEOC "Notice of Charge of Discrimination" was sent to
Bourgeois in his capacity as Human Resources Director at Quality
Fab & Mechanical, LLC. R. Doc. 16-1 at 18.
notice to Quality Fab & Mechanical Contractors and St. Rose Driving
See Sedlacek, 752 F.2d at 336 (when there is "substantial
identity" between defendants, "notice to one was notice to the
other"); Eggleston, 657 F.2d at 907 ("If a party has a close
relationship with a named respondent, . . . and has actual notice
of the EEOC charge . . . the [unnamed party] should not be heard to
cry 'foul' when later made a defendant in a suit . . . .").
Moreover, the EEOC never attempted conciliation in this case.16
Thus, neither Quality Fab & Mechanical Contractors nor St. Rose
Driving Range was deprived of the opportunity to participate in
See, e.g., Brodie v. New York City Transit
Auth., Civ. A. No. 96-6813, 1998 WL 599710, at *7 (S.D.N.Y. Sept.
investigation or conciliation], courts will find that the unnamed
party has experienced no prejudice.").
Accordingly, the Court
finds Quality Fab & Mechanical Contractors and St. Rose Driving
Range's argument to be without merit.
See Parks v. Miss. Dep't of
Transp., 380 F. Supp. 2d 776, 780 (N.D. Miss. 2005) (denying motion
to dismiss where unnamed party had "notice of potential civil
That service in the instant suit was effected on all
three corporate defendant's at the same address–-17 Shadow Lane,
Destrehan, Louisiana--further supports this conclusion. See R.
Docs. 4, 5, and 6. Defendant Bourgeois is the registered agent
for both Quality Fab & Mechanical defendants and his wife, Lorna
Bourgeois, is the registered agent for St. Rose Driving Range.
See R. Doc. 16-1 at 18.
The Court rejects Quality Fab & Mechanical Contractors and St.
Rose Driving Range's "lack of notice"
23:303(C) for the same reasons.
argument under La. R.S.
See Guidry v. Gulf Coast Teaching
Family Servs., Civ. A. No. 12-1537, 2012 WL 5830576, at *3 (E.D.
La. Nov. 16, 2012) ("Louisiana state and federal courts applying
Louisiana law have held that the filing of an EEOC charge of
requirements . . . .") (internal quotations omitted).
Finally, the Court acknowledges that defendants' status vel
non as a "single employer" or "joint employer" are legal questions
that may have a significant bearing on plaintiff's Title VII and
Thus, the Court's holding should not be interpreted
to preclude a properly supported motion for summary judgment on
Instead, the Court merely holds that plaintiff has
jurisdiction over his Title VII claims against Quality Fab &
Mechanical Contractors and St. Rose Driving Range.
B. Defendants' Motion to Dismiss Plaintiff's Hostile Work
All four defendants move to dismiss plaintiff's Title VII
hostile work environment claim.
Defendants' argument has two
First, defendants argue that the Court does not have
jurisdiction to consider any acts of harassment alleged in the
complaint that were not specifically identified in plaintiff's EEOC
Second, defendants contend that if the Court limits its
review to only those discrete acts referenced in the EEOC charge,
it must find that plaintiff has failed to allege sufficiently
severe or pervasive harassment to make out an actionable hostile
work environment claim.
As stated above, a plaintiff must exhaust administrative
remedies before filing suit under Title VII.
Employees, 40 F.3d at 711.
Nat'l Ass'n of Gov't
Nevertheless, a Title VII action
may be based, not only upon the specific complaints made
by the employee's initial EEOC charge, but also upon any
kind of discrimination like or related to the charge's
allegations limited only by the scope of the EEOC
investigation that could reasonably be expected to grow
out of the initial charges of discrimination.
Fine v. GAF Chem Corp., 995 F.2d 576, 578 (5th Cir. 1993) (internal
citation omitted); see also Young v. City of Hous., Tex., 906 F.2d
177, 179 (5th Cir. 1990) ("The scope of inquiry is not, however,
limited to the exact charge brought to the EEOC.").
protects unlettered lay persons making complaints without legal
training or the assistance of counsel."
Fine, 995 F.2d at 578.
Here, plaintiff filed a charge with the EEOC on May 12, 2014.17
He named defendant Quality Fab & Mechanical, LLC and checked the
R. Doc. 1-1 at 4. The Court considers the EEOC charge
without converting the motion into one for summary judgment
because plaintiff attached the charge to his complaint and the
charge is central to establishing his right to bring a civil
action under Title VII. See Masoodi v. Lockheed Martin Corp.,
Civ. A. No. 10-807, 2010 WL 2427741, at *1 n.2 (E.D. La. June 10,
2010) (considering a EEOC charge referred to in complaint and
attached to defendant's motion to dismiss).
box for discrimination based on sex.
Plaintiff also checked the
"other" box and handwrote "sexually hostile work environment."
Although plaintiff did not check the box for "continuing action,"
he provided June 20, 2013 as the date the earliest discrimination
On December 3, 2013 I was subjected to inappropriate
touching by my supervisor/owner Bruce Bourgeois, Sr. On
December 8, 2013 I was constructively discharged after
being attacked and threatened by Mr. Bourgeois. . . . I
believe I was discriminated against because Mr. Bourgeois
created a sexually hostile work environment in violation
of Title VII of the Civil Rights Act of 1964, as
"[H]ostile environment claims are different in kind from
discrete acts" because "[t]heir very nature involves repeated
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115
(2002). Indeed, "[a] hostile work environment claim is composed of
'unlawful employment practice.'"
Id. at 117 (quoting 42 U.S.C. §
As stated above, plaintiff's EEOC charge alleges
that "Mr. Bourgeois created a sexually hostile work environment,"
and further states that the harassment began on June 20, 2013 and
The scope of any investigation of plaintiff's hostile
work environment claim, which by its "very nature involves repeated
Bourgeois' conduct between June 20 and December 8, 2013.
Bourgeois' conduct on December 3 and 8, 2013 does not limit this
Court's review to those incidents.
See Gibson v. Potter, Civ. A.
No. 05-1942, 2007 WL 1428630, at *3 (E.D. La. May 10, 2007)
(holding that allegations of sexual harassment occurring before
date specified in the plaintiff's EEOC charge were "within the
ambit of a reasonable investigation into the January 14, 2004
incident, and thus, are part of Plaintiff's Title VII hostile work
environment claim"); Holden v. Ill. Tool Works, Inc., Civ. A. No.
(allegations of sexual harassment that predated incident detailed
in EEOC charge were properly before court because the claims were
not "entirely new acts of unlawful conduct" and did not "advance a
new theory of liability of which [the defendant] had no notice").
Accordingly, the Court finds that plaintiff's allegations of sexual
harassment occurring between June 20 and December 8, 2013 are
properly before the Court.
See Hickingbottom v. UNICCO Gov't
Servs., Inc., Civ. A. No. 10-894, 2010 WL 3720672, at *4 (E.D. La.
Sept. 13, 2010) (court considered specific acts not contained in
original EEOC charge because such acts were within scope of
reasonable investigation into incident reported in EEOC charge).
Having rejected defendants' request to limit its review of
Bourgeois' alleged conduct to the December 2013 incidents alone,
the Court finds that plaintiff's complaint alleges sufficiently
severe and pervasive harassment to make out a Title VII hostile
work environment claim.
"[A] plaintiff may establish a violation
of Title VII by proving that discrimination based on sex has
created a hostile or abusive working environment."
Comptroller of Pub. Accounts, 168 F.3d 871, 873 (5th Cir. 1999)
(internal quotations omitted).
Title VII's prohibition on
discrimination in the workplace includes a prohibition on same-sex
Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 82 (1998).
A prima facie case of a hostile work
environment requires proof that
(1) that the employee belongs to a protected class; (2)
that the employee was subject to unwelcome sexual
harassment; (3) that the harassment was based on sex; (4)
that the harassment affected a term, condition, or
privilege of employment; and (5) that the employer knew
or should have known of the harassment and failed to take
prompt remedial action.
Id. To affect a term, condition or privilege of employment, sexual
harassment "must be sufficiently severe or pervasive to alter the
conditions of [the victim's] employment and create an abusive
McKinnis v. Crescent Guardian, Inc., 189 F.
App'x 307, 309 (5th Cir. 2006).
To determine whether alleged
harassment is sufficiently severe or pervasive, courts look at the
totality of the circumstances including "the frequency of the
conduct, the severity of the conduct, the degree to which the
conduct is physically threatening or humiliating, and the degree to
which the conduct unreasonably interferes with an employee's work
Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194
(5th Cir. 1996).
Here, plaintiff alleges that
[s]hortly after commencing work, defendant Bourgeois
began to sexually harass plaintiff. The harassment took
many forms and included defendant Bourgeois telling
plaintiff, "I am going to fuck you," grabbing and
slapping his butt, calling plaintiff his "little bitch,"
telling plaintiff, "I love you, you mother fucker,"
trying to put plaintiff's hand in his pants or on his
crotch, asking for a kiss and holding plaintiff against
the bar to kiss him, biting plaintiff on the neck,
rubbing plaintiff's neck and shoulders as well as other
acts which will be proven at trial.19
Bourgeois allegedly removed plaintiff's shirt, rubbed plaintiff's
bare chest, and stuck his hand down the back of plaintiff's pants.20
When plaintiff complained about Bourgeois's conduct, Bourgeois
allegedly threw plaintiff against a car, ripped plaintiff's shirt,
and threatened to kill plaintiff if he complained further.21
Plaintiff has pleaded sufficient facts to make out a viable
hostile work environment claim. Plaintiff's complaint contains
R. Doc. 1 at 6.
Id. at 6-7.
Id. at 7.
repeatedly over the course of plaintiff's six-month employment.
The alleged conduct includes both verbal and physical harassment,
including the unwanted touching of plaintiff's intimate body parts.
See Harvill v. Westward Communications, L.L.C., 433 F.3d 428, 436
(5th Cir. 2005) ("Undoubtedly, the deliberate and unwanted touching
of [plaintiff's] intimate body parts can constitute severe sexual
harassment.") (citing Worth v. Tyer, 276 F.3d 249, 268 (7th Cir.
2001) ("[D]irect contact with an intimate body part constitutes one
of the most severe forms of sexual harassment.")).
Courts in this
district have consistently denied motions to dismiss on allegations
of conduct less severe and pervasive than that alleged here.
e.g., Royal v. CCC & R Arboles, L.L.C., 736 F.3d 396, 401-02 (5th
Cir. 2013) (evidence of "[t]he sniffing and hovering over a woman,
by two men, in a small, confined space" and comment that defendant
"needed a release" sufficed to create jury question on plaintiff's
hostile work environment claim); Steward v. Caton, Civ. A. No. 13823, 2013 WL 4459981, at *7 (E.D. La. Aug. 16, 2013) (plaintiff
sufficiently pleaded hostile work environment claim when plaintiff
alleged that defendant "lifted her shirt and touched her breasts,
installed cameras to look down her shirt, and made repeated
comments of a sexual and/or derogatory nature"); E.E.O.C. v. Jamal
& Kamal, Inc., Civ. A. No. 05-2667, 2006 WL 285143, at *2 (E.D. La.
Feb. 7, 2006) (denying defendant's motion to dismiss when plaintiff
alleged "unwelcome and offensive sexual overtures, the initiation
of graphic, sexually-oriented conversations, and touching and
Accordingly, the Court denies defendants' motion to
dismiss plaintiff's Title VII hostile work environment claim.
C. Defendants' Motion to Dismiss Plaintiff's Unjust Enrichment
Defendants move to dismiss plaintiff's unjust enrichment claim
because it is duplicative of his FLSA claim.
that this claim should be dismissed.22
Because unjust enrichment
claims are viable only if plaintiff has no other remedy at law, the
Court dismisses plaintiff's unjust enrichment claim.
v. Countrywide Bank, Civ. A. No. 10-1723, 2011 WL 692051, at *9
(E.D. La. Feb. 18, 2011).
For the foregoing reasons, defendants' motion to dismiss
plaintiff's Title VII claim is DENIED.
Defendants' motion to
dismiss plaintiff's unjust enrichment claim is GRANTED.
New Orleans, Louisiana, this _____ day of April, 2015.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
R. Doc. 16 at 18.
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