Sentmore v. DCL Mooring & Rigging

Filing 35

ORDER AND REASONS denying 26 Motion to Dismiss as to pla's retaliation claim. Signed by Judge Helen G. Berrigan on 11/10/2015. (kac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARRYL J. SENTMORE

CIVIL ACTION

VERSUS

NO. 15-760

DCL MOORING AND RIGGING

SECTION “C”
ORDER AND REASONS1

Before the Court is a Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) filed by Defendant, DCL Mooring and Rigging (“DCL”). See Rec. Doc. 26. Plaintiff
Darryl J. Sentmore (“Sentmore”) opposes the motion. See Rec. Doc. 28. Defendant filed a reply
memorandum. See Rec. Doc. 34. Having considered the memoranda of counsel, the record, and
the applicable law, the motion is DENIED for the following reasons.
I.

Background

The following are the facts according to Sentmore’s complaint. Sentmore, an AfricanAmerican man, was employed as a truck driver with DCL from 2007 to 2014. See Rec. Doc. 24
at 1. Beginning in 2012, Sentmore alleges he made several verbal complaints to his thensupervisor, Scott Folse, stating that his coworker, Wade Rodi (“Rodi”), a white male, was a
racist. See id. at 2. Sentmore alleges that Rodi refused to assist him in unloading his truck,
although that was part of Rodi’s job; that Rodi would occasionally load Sentmore’s truck
incorrectly, which constituted a safety risk had Sentmore not noticed; refused to return
Sentmore’s greetings; and would refer to Sentmore and other African-American employees as
“y’all people.” See id.

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Tracy Law, a third year student at Tulane University Law School, assisted in the preparation of this Order and
Reasons.

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On February 24, 2014, Sentmore alleges he made a verbal complaint with similar
allegations to his new supervisor, Steve Lyon. See id. Sentmore additionally complains that Rodi
talked down to him and had referred to Sentmore as someone “who just didn’t understand.” See
id. An investigation was allegedly conducted by DCL’s Human Resources Department. See id.
On March 12, 2014, DCL terminated Sentmore, citing a reduction in force, and informed
him of the results of the investigation into his allegations. See id. His Employee Performance
Report additionally cited restructuring and recent write-ups relating to job performance as
reasons for termination. See id.
Sentmore filed a claim of retaliation with the Equal Employment Opportunity
Commission (“EEOC”) on April 22, 2014. See id. at 1. He received a right-to-sue letter on
December 8, 2014. See id. On March 9, 2015, Sentmore filed this suit against DCL alleging
retaliation in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-3(a)
(2013).
II.

Standard of Review

In a Rule 12(b)(6) motion, the court must assume that all well-pleaded facts are true and
view them in the light most favorable to the plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). The plaintiff must allege “enough facts to state a claim to relief that is plausible on
its face.” Id. at 547. “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is enough for the pleaded facts to “raise
a reasonable expectation that discovery will reveal evidence.” Twombly, 555 U.S. at 556. “But
where the well-pleaded facts do not permit the court to infer more than the mere possibility of

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misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
relief.’” Ashcroft, 556 U.S. at 679.
III.

Law and Analysis

DCL’s motion addresses two issues: timeliness and the Title VII retaliation claim.
A. Timeliness
Title VII requires that “a charge under this section shall be filed within one hundred and
eighty days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1)
(2013). In discrete discrimination claims, “each incident of discrimination and each retaliatory
adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’”
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). Termination is an easily
identifiable discrete discriminatory or retaliatory action. See Id.
DCL argues that Sentmore’s claims are time-barred because the majority of his
allegations occurred beyond the 180-day limit. See Rec. Doc. 26-1 at 5–6. According to DCL,
the only allegation that is actionable is Rodi’s statement that Sentmore was someone “who just
didn’t understand.” See id. at 6. However, Sentmore did not make a claim of racial harassment or
discrimination. He filed a claim alleging that DCL terminated his employment in retaliation for
his complaint of racial discrimination against his coworker. See Rec. Doc. 24 at 1–2. The alleged
unlawful employment practice in this case is the termination, not Rodi’s workplace behavior.
Sentmore was terminated on March 12, 2014 and filed a claim with the EEOC on April
22, 2014, well within the 180-day limit. See id. at 2. Sentmore’s claim is not time-barred.
B. Title VII Retaliation Claim
To establish a claim of retaliation in violation of Title VII, Sentmore must demonstrate
that (1) he engaged in a protected activity, (2) that an adverse employment action occurred, and

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(3) a causal link between the protected activity and the adverse action existed. See Raggs v.
Mississippi Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002). DCL states that Sentmore has
failed to allege facts to support prongs one and three. See Rec. Doc. 26-1 at 4–11.
i.

Protected Activity

DCL makes three distinct arguments as to why Sentmore did not engage in protected
activity. First, DCL characterizes Sentmore’s complaints as “vague grousings and grumblings”
that fall outside the definition of protected activity. Rec. Doc. 26-1 at 8. DCL correctly asserts
that “[a] vague complaint, without reference to an unlawful employment practice under Title VII,
does not constitute protected activity.” Riley v. Napolitano, 537 Fed. Appx. 391, 392 (5th Cir.
2013). DCL then makes the argument and concludes that Sentmore’s complaints are vague, do
not allege that the unfair treatment was due to a protected status, or do not specify specific
incidents. See Rec. Doc. 26-1 at 7–8.
DCL’s argument is unfounded. Sentmore’s complaints are distinguishable from the cases
cited in DCL’s motion. See Rec. Doc. 26 at 7–8. Sentmore explicitly stated that Rodi was a
racist, which evokes Title VII’s prohibition against race discrimination. See Rec. Doc. 24 at 2.
Furthermore, Sentmore listed examples of incidents when Rodi would treat him worse than white
drivers. See id. It is clear that Sentmore was not complaining of mere mistreatment, as DCL
characterizes, but of mistreatment because of race.
Second, DCL argues that Sentmore did not engage in a protected activity because Rodi’s
behavior was not unlawful under Title VII. See Rec. Doc. 26-1 at 9. Under Title VII, an
employee is protected from retaliation when “he has opposed any practice made an unlawful
employment practice . . . or because he has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. §

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2000e-3(a) (2013). An employee need only to show that he reasonably believed that the
employer was engaged in unlawful employment practices. Byers v. Dallas Morning News, Inc.,
209 F.3d 419, 428 (5th Cir. 2000). It is therefore not necessary for Sentmore to show that Rodi’s
behavior is unlawful under Title VII, as DCL claims. Rather, Sentmore only needs to
demonstrate that he reasonably believed that Rodi was engaging in unlawful employment
practices.
Third, DCL argues that Sentmore’s complaints do not rise to the level of protected
activity because he does not demonstrate a reasonable belief that Rodi was violating Title VII.
See Rec. Doc. 26-1 at 8–9. DCL describes Rodi’s actions as “simple teasing, offhand comments,
and isolated incidents,” which do not violate Title VII unless these incidents are “extremely
seriously.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (citing Faragher v. Boca
Raton, 524 U.S. 775 (1998)).
The Court disagrees. The Fifth Circuit has found that reasonable belief can be implicit,
given the evidence. Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1140–41
(5th Cir. Unit A Sept. 1981). There is merit in DCL’s argument that Rodi’s failure to assist
Sentmore with loading and unloading his truck, to return greetings, and to speak to Sentmore
with respect would not be judged by the reasonable person as discriminatory behavior. Title VII
is indeed not meant to be a “general civility code” for the workplace. Faragher v. Boca Raton,
524 U.S. 775, 788 (1998). However, DCL ignores Sentmore’s allegations that Rodi would misload Sentmore’s truck, which jeopardized public safety and Sentmore’s job security, in addition
to Rodi being a racist. See Rec. Doc. 24 at 2. These allegations together imply that Sentmore
reasonably believed that Rodi’s attempts to sabotage him were motivated by racial animus, in

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violation of Title VII. Sentmore has pleaded facts sufficient to show that he engaged in a
protected activity.
ii.

Causal Link

DCL claims that Sentmore has not proven a causal link between his protected activity and
the adverse employment action. See Rec. Doc. 26-1 at 10. DCL claims that Sentmore’s case is
based entirely on speculation and that there is a lack of temporal proximity from which to infer
causation. See id. The Supreme Court has found that “Title VII retaliation claims must be proved
according to traditional principles of but-for causation.” Univ. of Tx. Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517, 2533 (2013). “Close timing between an employee’s protected activity and an
adverse action against him may provide the “causal connection” required to make out a prima
facie case of retaliation.” Swanson v. Gen. Serv. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). A
plaintiff cannot, however, rely solely on temporal proximity. Strong v. Univ. Healthcare System,
L.L.C., 482 F.3d 802, 808 (5th Cir. 2007). Nonetheless, courts have implied that employer notice
of the protected activity, along with close temporal proximity, can suggest a causal connection.
See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (finding that 20 months is too
long to establish causality); Haire v. Bd. Of Supervisors of Louisiana State Univ. Agric. and
Mech. Coll., 719 F.3d 356 (5th Cir. 2013) (finding a 3-month period sufficient to create inference
of retaliation); Ware v. CLECO Power LLC, 90 Fed. Appx. 705 (5th Cir. 2004) (finding 15 days
between a protected complaint and termination sufficient to satisfy causation prong of a prima
facie retaliation claim); Barnes v. McHugh, Civil Action No. 12-2491, 2013 WL 3561679, at *16
(E.D. La. 2013) (finding that plaintiff’s ongoing EEOC complaint was common knowledge
among her supervisors and contributed to their retaliatory actions).

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In the case at hand, Sentmore was terminated sixteen days after he made a protected
complaint to his supervisor. See Rec. Doc. 24 at 2. Just after two weeks is well within the range
set by the Fifth Circuit as close enough to establish temporal proximity and causation.
Additionally, DCL had notice of Sentmore’s protected activity. Sentmore alleges that his
complaints were investigated by DCL’s Human Resources Department. See id. at 2. Sentmore
was informed of the investigation’s negative findings at the same time that he was terminated by
representatives of DCL’s Human Resources Department. See id. at 2. Sentmore has pleaded facts
that allow an inference of a causal connection between the protected activity and an adverse
employment action.

Accordingly,
IT IS ORDERED that defendant’s Motion to Dismiss is DENIED as to plaintiff’s
Retaliation claim. See Rec. Doc. 26.

Entered this 10th day of November, 2015, in New Orleans, Louisiana.

_________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

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