Richard v. Department of the Navy, et al.

Filing 33

ORDER AND REASONS granting 22 Motion to Dismiss. Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LEON RICHARD

CIVIL ACTION

VERSUS

NO: 17-1919

DEPARTMENT OF THE NAVY

SECTION “H”

ORDER AND REASONS
Before the Court is Defendant’s Motion to Dismiss (Doc. 22). For the
following reasons, the Motion is GRANTED.
BACKGROUND
Plaintiff Leon Richard, an African-American male, has worked as a
pharmacist with the United States Navy for more than nine years. He alleges
that in June 2015 he was directed by his supervisors to physically count
dispensed medication at an open counter in public view. He refused to comply
with the request because he avers that such would be a violation of the ethical
code of conduct for licensed pharmacists. Plaintiff filed an informal complaint
1

with the Naval Office of Naval Relations regarding the unethical directive. He
alleges that his refusal to comply with the request and his subsequent
complaint resulted in retaliation and harassment. Specifically, he avers that
he was stripped of administrative and supervisory duties, required to sign in
and out of work, counseled regarding tardiness, and subjected to a hostile work
environment of unethical and unprofessional treatment. Plaintiff brings claims
for retaliation and hostile work environment under Title VII.
Defendant Richard V. Spencer, Secretary of the U.S. Department of the
Navy, has filed the instant Motion to Dismiss, arguing that Plaintiff’s
Complaint fails to state a claim upon which relief can be granted. This Court
will consider each of Plaintiff’s claims in turn.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim for relief that is plausible on its face.” 1 A claim is
“plausible on its face” when the pleaded facts allow the court to “draw
reasonable inference that the defendant is liable for the misconduct alleged.” 2
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.” 3 The court need not, however,
accept as true legal conclusions couched as factual allegations. 4 To be legally
sufficient, a complaint must establish more than a “sheer possibility” that the
1 Ashcroft

v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 547 (2007)).
2 Id.
3 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
4 Iqbal, 556 U.S. at 678.
2

plaintiff’s claims are true. 5 If it is apparent from the face of the complaint that
an insurmountable bar to relief exists and the plaintiff is not entitled to relief,
the court must dismiss the claim. 6 The court’s review is limited to the
complaint and any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint. 7
LAW AND ANALYSIS
A. Retaliation
As a federal employee, Plaintiff’s claims are governed by the federal
sector provision of Title VII, 42 U.S.C. § 2000e-16, which states that, “All
personnel actions affecting employees . . . shall be made free from any
discrimination based on race, color, religion, sex, or national origin.” The Fifth
Circuit has held that in order for a “personnel action” to be actionable, it must
address an “ultimate employment decisions,” namely “hiring, granting leave,
discharging, promoting, and compensating.” 8 The employment actions
identified in Plaintiff’s Complaint—removal of administrative and supervisory
duties, added requirement to sign in and out of work, counseling on tardiness,
and unethical and unprofessional treatment—do not rise to the ultimate
employment decision standard. Accordingly, Plaintiff has not identified an
Id.
Lormand, 565 F.3d at 255–57.
7 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
8 Washington v. Veneman, No. 02-2678, 2004 WL 170315, at *5 (E.D. La. Jan. 27,
2004), aff’d, 109 F. App’x 685 (5th Cir. 2004); see Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir.
1995). Plaintiff cites to Daniel v. U.S. Dep’t of Homeland Sec., No. 15-3628, 2016 WL 5800983,
at *6 (E.D. La. Oct. 5, 2016), for the proposition that the ultimate employment decision
standard does not apply. However, the court in Daniel was considering a hostile work
environment claim. Id.
3
5
6

adverse personnel action that resulted from his protected activity, and his
retaliation claim is therefore dismissed.
B. Hostile Work Environment
In his opposition, Plaintiff contends that he brings a claim for hostile
work environment based on race. However, the Complaint is completely devoid
of any facts that would suggest that his employer’s actions were racially
motivated. Indeed, throughout the Complaint Plaintiff contends that the
alleged hostile work environment was in retaliation for reporting unethical
conduct. Accordingly, Plaintiff’s hostile work environment claim based on race
is dismissed.
Plaintiff next contends that he brings a claim of retaliatory hostile work
environment. Even assuming, without deciding, that a retaliatory hostile work
environment claim is cognizable, Plaintiff’s Complaint fails to sufficiently
allege such. 9 In order to bring a hostile work environment claim, Plaintiff must
allege that the harassment altered the “terms, conditions, or privileges” of his
employment. 10 “For harassment . . . to affect a term, condition, or privilege of
employment, as required to support a hostile work environment claim under
Title VII, it must be sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.” 11 “[N]ot
only must the victim perceive the environment as hostile, the conduct must

See Rowe v. Jewell, 88 F. Supp. 3d 647, 673 (E.D. La. 2015) (discussing the “lack of
a definitive decision from the Fifth Circuit” regarding whether a claim for retaliatory hostile
work environment is cognizable).
10 Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).
11
Id.
9

4

also be such that a reasonable person would find it to be hostile or abusive.” 12
Plaintiff’s allegations, which essentially amount to a change in duties and
increased oversight, do not rise to this level. Indeed, courts have held that
changes to duty and schedule assignments and selective enforcement of
policies are not sufficiently hostile to support a claim. 13 Plaintiff has not
identified with particularity any additional “unethical and unprofessional”
conduct. Accordingly, Plaintiff’s hostile work environment claim is dismissed.
In light of Plaintiff’s Complaint, Opposition, and the exhibits thereto,
this Court finds that allowing Plaintiff to amend his Complaint would be futile.
Plaintiff has not identified any allegation that could remedy the deficiencies
discussed herein.
CONCLUSION
For the foregoing reasons, the Motion is GRANTED, and Plaintiff’s
claims are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 11th day of May, 2018.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

12
13

E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th Cir. 2007).
See Rowe, 88 F. Supp. 3d at 675, and cases cited therein.
5