Harris v. Audubon Aquarium of the Americas

Filing 10

ORDER granting 9 Motion to Dismiss for Failure to State a Claim. The plaintiff's claims are hereby dismissed with prejudice. Signed by Judge Martin L.C. Feldman on 11/15/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

EDMOND HARRIS

CIVIL ACTION

v.

NO. 17-7984

AUDUBON AQUARIUM OF THE AMERICAS

SECTION "F"

ORDER AND REASONS

Local Rule 7.5 of the Eastern District of Louisiana requires
that memoranda in opposition to a motion be filed eight days prior
to the noticed submission date.

Audubon Nature Institute, Inc.

(incorrectly referred to as “Audubon Aquarium of the Americas” in
the plaintiff’s complaint) has filed a motion to dismiss.

No

memorandum in opposition to the defendant’s motion to dismiss,
which is noticed for submission on November 15, 2017, has been
timely filed.
Accordingly, because the motion is unopposed, and further, it
appearing to the Court that the motion has merit, 1 IT IS ORDERED:

On August 18, 2017, Mr. Harris filed a complaint for violation
of civil rights under 42 U.S.C. § 1983 as well as Title VII against
the Audubon Aquarium of the Americas. He alleges that he worked
for the defendant and on May 19, 2017, he was told to drive a golf
cart to retrieve a hose. When he returned to the security gate,
the security guards did not open the gate.
Mr. Harris alleges
that when he reached to hit the call button, the golf cart lurched
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forward to hit the gate, forcing it off the track. He put the
gate back in place and then electricians reprogrammed the gate so
that it worked properly. Even though he says his supervisors knew
the golf cart’s brakes were faulty, he was fired.
Mr. Harris
alleges that he believes that he was fired because his supervisor
is a bigot.
Mr. Harris alleges that he was told that white
employees do not get fired for accidents unless they cause numerous
accidents. On the same day that Mr. Harris filed his EEOC charge
of discrimination, the EEOC closed its file on the charge because
it was “unable to conclude that the information obtained
establishes a violation of the statutes.”
The defendant seeks to dismiss Mr. Harris’s claims under
Section 1983 and Title VII for failure to state a claim. Because
Mr. Harris fails to plead facts that give rise to a claim under
Section 1983 and Title VII, the Court finds dismissal is warranted.
With respect to Section 1983, the plaintiff fails to allege facts
that the alleged deprivation was committed by a person acting
“under color of state law.” See West v. Atkins, 487 U.S. 42, 49
(1988)(citation omitted). The Audubon Nature Institute, Inc. is
a non-profit corporation; the plaintiff fails to suggest how
Audubon might be a state actor or otherwise clothed with the
authority of state law.
With respect to Title VII, the plaintiff also fails to state
a claim on which relief may be granted. Of course, a plaintiff
“need not make out a prima facie case of discrimination in order
to survive a Rule 12(b)(6) motion to dismiss for failure to state
a claim.” Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir.
2013)(citation omitted).
“[T]he ‘ultimate question’ in a Title
VII disparate treatment [case] is ‘whether a defendant took the
adverse employment action against a plaintiff because of [his]
protected status.” Id. (quotation omitted, emphasis in original).
Here, the defendant contends that the plaintiff provides only
conclusory allegations that his employment was terminated because
of his race. Not only does he fail to specify his race in the
complaint, he offers nothing more than speculation that white
employees are treated differently: he does not indicate the jobs
or work violations of the “white” employees he references.
Accordingly, the complaint fails to offer any facts that would
plausibly suggest that the defendant treated similarly situated
employees of other races more favorably.
The defendant argues
that rumors and conclusory allegations are insufficient to
withstand a Rule 12(b)(6) motion to dismiss for failure to state
a claim. The Court agrees. See Whitlock v. Lazer Spot, Inc., 657
Fed.Appx. 284, 286-87 (5th Cir. 2016).
Because Mr. Harris has
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that the
unopposed.

defendant’s

motion

to

dismiss

is

hereby

GRANTED

as

The plaintiff’s claims are hereby dismissed with

prejudice.

New Orleans, Louisiana, November 15th 2017
__,

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

failed to allege sufficient facts supporting his claim that Audubon
fired him because he is African American, his Title VII claim must
also be dismissed.
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