Judeh v. T-Mobile Central LLC
Filing
30
ORDER and REASONS - The Court GRANTS defendant's motion to dismiss, and dismisses plaintiff's second amended complaint WITH PREJUDICE 21 . The Court DISMISSES defendant's motion to dismiss plaintiff's first amended complaint as MOOT 9 , as stated herein. Signed by Judge Sarah S. Vance on 1/18/2023. (cbs)
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 1 of 31
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HILMI JUDEH
CIVIL ACTION
VERSUS
NO. 22-1130
T-MOBILE CENTRAL LLC ET AL.
SECTION “R” (5)
ORDER AND REASONS
Before the Court is defendant T-Mobile USA, Inc.’s (“T-Mobile”)
motion to dismiss plaintiff Hilmi Judeh’s second amended complaint. 1
Plaintiff opposes the motion.2 For the following reasons, the Court grants
defendant’s motion.
I.
BACKGROUND
This case arises from discrimination and harassment plaintiff allegedly
experienced while he was employed by T-Mobile from 2016 until 2020.
Plaintiff, a man of Middle Eastern descent, was first hired by T-Mobile as a
retail sales consultant in 2016. 3 In the years that followed, plaintiff applied
1
2
3
R. Doc. 21.
R. Doc. 24.
R. Doc. 20 ¶ 10. Plaintiff does not identify his race in his complaint,
but in his EEOC charge, he describes his race as white and his national
origin as Arab. R. Doc. 1-1 at 2. On a motion to dismiss, the Court may
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 2 of 31
several times for a promotion to the position of retail associate manager, and
in 2019, he received the promotion.4 Plaintiff alleges that, even though he
was promoted, won multiple awards, and exceeded sales goals during his
time at T-Mobile, he was the victim of “continuous” harassment, retaliation,
and discrimination on the basis of his race, sex, and national origin, which
ultimately led him to resign.5
Plaintiff contends he experienced various instances of harassment on
the basis of his sex. For example, plaintiff alleges that on one occasion, he
brought coffee to work for one of his female coworkers, which prompted
another coworker to say, “aww you brought your girlfriend coffee.” 6 He also
alleges that a coworker told a customer that T-Mobile had hired plaintiff “for
his sex appeal.”7 Another coworker allegedly accused plaintiff of being bad
at talking to women.8
4
5
6
7
8
Plaintiff also alleges that, on one occasion, his
consider documents attached to or incorporated in the complaint and
matters of which judicial notice may be taken. See United States ex rel.
Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 379 (5th
Cir. 2003). Plaintiff refers to his EEOC charge as “Exhibit A” in his
second amended complaint, but did not actually attach the document
along with his filing. He did, however, attach it to an earlier iteration
of his complaint. See R. Doc. 1-1.
Id. ¶ 26.
Id. ¶ 12.
Id. ¶ 18.
Id. ¶ 19.
Id. ¶ 32.
2
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 3 of 31
supervisor falsely accused him of making inappropriate comments to his
female coworkers. 9
Following this incident, plaintiff allegedly ceased
communicating with all female coworkers altogether, which drew further
criticism.10 Finally, plaintiff contends that he was discriminated against on
the basis of his sex because some of his female coworkers were paid more
and promoted faster than he was.11
In support of his claims of harassment on the basis of his race and/or
national origin, plaintiff alleges that his coworkers mocked the way Arab
people sing, 12 pronounced the word Arab incorrectly, 13 and made
generalizations about Arab men being violent and controlling toward
women. 14 One coworker in particular allegedly compared plaintiff to a “slave
master” and shared a link to a documentary about the history of Arabs
enslaving Africans with the rest of the store staff.15
Plaintiff also makes a number of other miscellaneous complaints
regarding the way he was treated during his time at T-Mobile that are
unrelated to his sex, race, or national origin. For example, plaintiff contends
9
10
11
12
13
14
15
Id. ¶ 15.
Id. ¶ 16.
Id. ¶ 73.
Id. ¶ 31.
Id. ¶ 32.
Id. ¶ 33.
Id. ¶¶ 35-36.
3
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 4 of 31
that he witnessed other employees make inappropriate sexual comments, 16
and that one of his coworkers told him that a woman they worked with was
featured in a sex tape.17 Plaintiff alleges that he was called a “bitch” by one
coworker, 18 and that a supervisor once told him to “get the [expletive] out of
my district.”19 He contends that on another occasion, a coworker “snatched”
paperwork from his hands,20 and that he was once asked to work at a
different T-Mobile location from his usual store against his preferences.21 He
also alleges that a store manager attempted to provoke physical
confrontations with plaintiff,22 refused to pass revenue opportunities to
plaintiff,23 and interjected himself into plaintiff’s conversations with
customers.24
Finally, plaintiff alleges that he was retaliated against in two instances.
First, he contends that he indicated to a supervisor that he wanted to apply
for managerial jobs outside of his market. 25 Plaintiff contends that his
16
17
18
19
20
21
22
23
24
25
Id. ¶¶ 13, 34, 38.
Id. ¶ 34.
Id. ¶ 33.
Id. ¶ 24.
Id. ¶ 39.
Id. ¶ 22.
Id. ¶ 20.
Id. ¶ 24.
Id. ¶ 20.
Id. ¶ 42.
4
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 5 of 31
supervisor retaliated against him by issuing a “Not in Good Standing
Performance Improvement Plan” (“PIP”). 26
Second, plaintiff alleges that when he put in his two-week notice, he
informed the company that he was resigning because he had been
discriminated against, and that he intended to file a formal complaint.27
Plaintiff asserts that after he gave notice, T-Mobile retaliated against him by
opening an investigation into his practice of passing out his real estate
business cards to customers.28 He contends that other employees had
second jobs they performed while on the clock for T-Mobile but were not
reprimanded or investigated for it.29
Plaintiff filed a complaint in this Court on April 25, 2022,30 and he filed
an amended complaint three months later.31 Both of these complaints
brought one claim for race and sex discrimination in violation of Title VII of
the Civil Rights Act of 1964.32
T-Mobile moved to dismiss plaintiff’s
amended complaint, 33 in response to which plaintiff filed this second
26
27
28
29
30
31
32
33
Id. ¶ 43.
Id. ¶ 46.
Id. ¶ 47.
Id. ¶¶ 48-50.
R. Doc. 1.
R. Doc. 8.
R. Doc. 1 at 6; R. Doc. 8 at 6.
R. Doc. 9.
5
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 6 of 31
amended complaint. In his second amended complaint, plaintiff brings eight
claims. He brings five claims under Title VII of the Civil Rights Act of 1964:
discrimination on the basis of race and national origin, 34 discrimination in
pay, disparate treatment based on sex, hostile work environment, and
retaliation. Plaintiff also brings claims under the Equal Pay Act and the
Emergency Paid Sick Leave Act.
T-Mobile moved to dismiss plaintiff’s second amended complaint for
failure to state a claim.
As a threshold matter, T-Mobile asserts that
plaintiff’s EEOC charge pertained only to plaintiff’s claims of harassment on
the basis of national origin, so plaintiff has not exhausted his administrative
remedies as to his claims to sex discrimination, harassment on the basis of
sex, failure to promote, pay discrimination, and retaliation. T-Mobile also
contends that plaintiff has failed to plausibly allege that he was discriminated
against, harassed, or retaliated against on the basis of his race, sex, or
national origin.
Plaintiff opposes defendant’s motion. The Court considers the parties’
arguments below.
34
Plaintiff also cites to 42 U.S.C. § 1981 in support of this claim. R. Doc.
20 ¶¶ 56-57.
6
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 7 of 31
II.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts to “state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 547 (2007)). 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.” Id. at 678. The Court
must accept all well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d
228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.
On a Rule 12(b)(6) motion, the Court must limit its review to the
contents of the pleadings, including attachments. Brand Coupon Network,
L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). The Court
may also consider documents attached to a motion to dismiss or an
opposition to that motion when the documents are referred to in the
pleadings and are central to a plaintiff’s claims. Id. “In addition to facts
alleged in the pleadings, however, the district court ‘may also consider
matters of which [it] may take judicial notice.’” Hall v. Hodgkins, 305 F.
7
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 8 of 31
App’x 224, 227 (5th Cir. 2008) (citing Lovelace v. Software Spectrum, Inc.,
78 F.3d 1015, 1017-18 (5th Cir. 1996)).
III. DISCUSSION
A.
Title VII of the Civil Rights Act of 1964
1.
Exhaustion of Administrative Remedies
Before filing a civil action under Title VII, a plaintiff must file a timely
administrative charge with the EEOC. See Price v. Choctaw Glove & Safety
Co., 459 F.3d 595, 598 (5th Cir. 2006). A Title VII suit may “extend as far
as, but no further than, the scope of the EEOC investigation which could
reasonably grow out of the administrative charge.” Vicknar v. Louisiana
Dep’t of Public Safety and Corrections, 555 F. App’x 325, 332 (5th Cir. 2014).
Accordingly, a Title VII lawsuit may include allegations like or related to
allegations contained in the EEOC charge and growing out of such
allegations during the pendency of the case before the EEOC. Stingley v.
Watson Quality Ford, Jackson, MS, 836 F. App’x 286, 291 (5th Cir. 2020)
(courts must assess the scope of a Title VII lawsuit “somewhat broadly, not
solely by the scope of the administrative charge itself”). As a general matter,
a charge of employment discrimination “must be construed with the ‘utmost
liberality,’” in part because “such charges are generally prepared by laymen
8
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 9 of 31
untutored in the rules of pleading.” Price v. Sw. Bell Tel. Co., 687 F.2d 74,
78 (5th Cir. 1982). A Title VII plaintiff’s failure to exhaust his administrative
remedies “is not a jurisdictional bar but rather a prudential prerequisite to
suit.” Davis v. Fort Bend Cnty., 893 F.3d 300, 305 (5th Cir. 2018).
Plaintiff’s EEOC charge alleges retaliation and discrimination on the
basis of race and national origin. 35 Plaintiff cites the following facts in
support of his EEOC charge: (1) that one of his coworkers compared him to
a slave master, contended that Arabs enslaved Africans before Europeans
did, and sent around a link to a documentary about the same; (2) that when
plaintiff reported that incident, nothing was done about it; (3) that plaintiff
was issued a PIP for “talking inappropriate”; and (4) that after plaintiff
submitted his two-week notice, T-Mobile opened an investigation against
plaintiff for plaintiff’s practice of giving his real estate business cards to TMobile customers. 36
Plaintiff’s EEOC charge does not expressly reference any incidents of
sex discrimination or harassment, nor does it mention the failure to promote
or the pay discrimination issues that plaintiff raises in his complaint.
Plaintiff contends that it is nevertheless possible that these issues could have
35
36
R. Doc. 1-1.
Id. at 1.
9
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 10 of 31
“grown out of” the EEOC’s investigation of plaintiff’s charge. The Court need
not decide whether these claims “grow out of” the investigation because even
if all of plaintiff’s claims were within the scope of his EEOC charge, plaintiff
fails to state a claim.
2.
Merits of Plaintiff’s Title VII Claims
Plaintiff brings five claims under Title VII: discrimination on the basis
of race and national origin, discrimination in pay, disparate treatment based
on sex, hostile work environment, and retaliation. The Court will address
each claim in turn.
i. Discrimination on the basis of race and national origin
Plaintiff contends that he was unlawfully discriminated against on the
basis of his race and national origin. Although plaintiff characterizes this as
a Title VII claim, he also cites to 42 U.S.C. § 1981 in support of his claim. The
Court will construe this claim as one for discrimination under both statutes.
Title VII provides that “[i]t shall be an unlawful employment practice for an
employer . . . to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of
10
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 11 of 31
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §
2000e-2. Similarly, section 1981 provides:
All persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and
equal benefit of all laws and proceedings for the security of
persons and property as it is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other.
42 U.S.C. § 1981. “Although § 1981 does not itself use the word ‘race,’ the
[Supreme] Court has construed the section to forbid all ‘racial’
discrimination in the making of private as well as public contracts.” Saint
Francis College v. Al-Khazraji, 481 U.S. 604, 609 (1987). Section 1981 has
also been construed to prohibit discrimination on the basis of national origin.
Id. at 615 (“If respondent on remand can prove that he was subjected to
intentional discrimination based on the fact that he was born an Arab . . . he
will have made out a case under § 1981.”). “The legal framework governing”
Title VII claims and section 1981 claims “is coextensive.” Willis v. Cleco
Corp., 749 F.3d 314, 317 (5th Cir. 2014).
In order to state a claim for race discrimination under Title VII, a
plaintiff must allege “(1) that he is a member of a protected class, (2) that he
was qualified for the position, (3) that he suffered an adverse employment
action, and (4) that others similarly situated were more favorably treated.”
11
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 12 of 31
Durkin v. U.S. Postal Serv., 54 F. App’x. 794, 2002 WL 31845206, at *1 (5th
Cir. 2002) (citing LaPierre v. Benson Nissan, 86 F.3d 444, 448 (5th Cir.
1996)).
The only potential “adverse employment action” plaintiff links to his
race or national origin in his complaint was his resignation, which he
contends amounts to constructive discharge. “In determining whether an
employer’s actions constitute a constructive discharge,” courts consider
“whether ‘working conditions became so intolerable that a reasonable person
in the employee’s position would have felt compelled to resign.’” Aryain v.
Wal-Mart Stores Tex. LP, 534 F.3d 473, 480 (5th Cir. 2008) (alterations
omitted) (quoting Penn. State Police v. Suders, 542 U.S. 129, 141 (2004)).
An employee may be constructively discharged in several ways, including by:
(1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work;
(5) badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or (6) offers
of early retirement that would make the employee worse off
whether the offer were accepted or not.
Aryain, 534 F.3d at 481.
The only method of constructive discharge plaintiff arguably invokes
in his complaint is “badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation.” Id. Although plaintiff
does not allege that he experienced any “badgering, harassment, or
12
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 13 of 31
humiliation” on the basis of his race, he does contend that he was harassed
on the basis of his national origin: He alleges that one of his coworkers
compared him to a slave master and texted a link to a documentary regarding
the history of Arabs enslaving Africans to all of the store staff members,37
and that another coworker openly criticized Arab men’s treatment of
women. 38 He also alleges that one of his coworkers mocked the way Arabs
sing, and that another intentionally mispronounced the word “Arab.”39
These few, isolated instances of harassment, taken as true, are not “so
intolerable that a reasonable person in [plaintiff’s] position would have felt
compelled to resign.” Martin v. American Midstream Partners, LP, 386 F.
Supp. 3d 733, 740 (E.D. La. May 15, 2019) (dismissing constructive discharge
claim when African American plaintiff alleged that a noose was left in his
workspace).
“Mere harassment,” absent “aggravating factors to justify
departure,” does not constitute constructive discharge.
Hockman v.
Westward Commc’ns, LLC, 407 F.3d 317, 331 (5th Cir. 2004). The several
instances
of
harassment
that
plaintiff
allegedly
endured,
while
unprofessional and culturally insensitive, are not sufficiently “sever[e] or
pervasive[e]” to state a claim for constructive discharge.
37
38
39
R. Doc. 20 ¶¶ 36-37.
Id. ¶ 33.
Id. ¶¶ 31-32.
13
Harvill v.
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 14 of 31
Westward Commc’ns, LLC, 433 F.3d 428, 440 (5th Cir. 2005). Plaintiff also
fails to allege that the harassment he experienced was “calculated to
encourage his resignation.” Aryain, 534 F.3d at 481. Accordingly, plaintiff’s
claims for discrimination on the basis of race under Title VII and section 1981
are dismissed.
ii. Discrimination in pay
Title VII prohibits discrimination in compensation based on an
individual’s sex, race, or national origin.
To establish a claim of
discriminatory compensation under Title VII, a plaintiff must show that he
(1) is a member of a protected class and (2) was paid less than a nonmember
for work requiring substantially the same responsibility. Sanders v. W.
Water Features, Inc., 248 F. App’x 576, 577 (5th Cir. 2007).
Plaintiff
asserts
that
he
was
subjected
to
“discriminatory
compensation,” but the only factual allegation he cites in support of this
claim is that female employees “received a higher rate of pay.”40 This
conclusory allegation is insufficient to plausibly allege pay discrimination.
Plaintiff alleges no facts indicating that his female coworkers were paid more
“for work requiring the same responsibility” as his work. Id.; see also Gentry
40
R. Doc. 20 ¶ 26.
14
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 15 of 31
v. Jackson State University, 161 F. Supp. 3d 418, 422 (S.D. Miss. 2015)
(dismissing Title VII discriminatory compensation claim when plaintiff
“alleged nothing more than that she ‘has not been compensated for
coordinating programs, unlike her male coworkers have’”). 41 Plaintiff has
thus failed to state a claim for pay discrimination under Title VII.
iii. Disparate treatment based on sex
Plaintiff also brings a claim under Title VII for disparate treatment on
the basis of sex.
“Disparate-treatment discrimination addresses
employment actions that treat an employee worse than others based on the
employee’s race, color, religion, sex, or national origin.”
Cicalese v.
University of Texas Medical Branch, 924 F.3d 762, 766 (5th Cir. 2019)
(quoting Pacheco v. Mineta, 448 F.3d 783, 787 (5th Cir. 2006)). There are
“two ultimate elements a plaintiff must plead to support a disparate
treatment claim under Title VII: (1) an adverse employment action, (2) taken
against a plaintiff because of [his] protected status.” Id. (internal quotation
41
Plaintiff does allege that his female coworkers were paid more for
performing the same work in support of his claim for pay
discrimination under the Equal Pay Act, but as discussed in Section
III.B.1, infra, those allegations are nothing more than a conclusory
recitation of the elements of an Equal Pay Act claim, unsubstantiated
by any factual allegations that would render his claim plausible.
15
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 16 of 31
marks omitted) (emphasis in original). Accordingly, a plaintiff must allege
“facts, [either] direct or circumstantial, that would suggest [the employer’s]
actions were based on” the plaintiff’s protected class. Id.
In support of this claim, plaintiff asserts that T-Mobile “created and
fostered policies and a work environment” that disadvantaged plaintiff
compared to similarly situated female employees. Plaintiff does not actually
identify what those policies are, nor does he plausibly allege that he suffered
an “adverse employment action” because of his sex.
In the disparate
treatment context, only “ultimate employment decisions” are actionable
adverse employment actions. Moore v. Napolitano, No. 07-2666, 2010 WL
2671850, at *11 (E.D. La. June 29, 2010). “Ultimate employment decisions”
include “hiring, granting leave, discharging, promoting, and compensating.”
Id.
Plaintiff asserts in his complaint that his female coworkers were
promoted more quickly and paid at a higher rate than he was. Although these
are the kinds of actions that constitute “ultimate employment decisions” for
purposes of a disparate-treatment claim, plaintiff alleges no direct or
circumstantial facts that, if true, would plausibly indicate that plaintiff’s
failure to be promoted as quickly or paid as much as his female coworkers
was because of his membership in a protected class. Cicalese, 924 F.3d at
16
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 17 of 31
766.
For example, he does not explain how his work responsibilities
compared to those of his female coworkers who were allegedly paid more.
Taylor v. United Parcel Service, Inc., 554 F.3d 510, 523 (5th Cir. 2008)
(“[A]n individual plaintiff claiming disparate treatment in pay under Title
VII must show that his circumstances are ‘nearly identical’ to those of a
better-paid employee who is not a member of the protected class.”). Nor
does he describe how his qualifications compared to those of the women who
were allegedly promoted more quickly than he was. In sum, plaintiff does
not include any factual allegations that would permit the Court to plausibly
infer that he was paid less or passed over for promotions because he was a
man. The Court thus dismisses plaintiff’s claim for disparate treatment on
the basis of sex.
iv. Hostile work environment
Plaintiff also contends that T-Mobile fostered a hostile work
environment. To state a claim for hostile work environment under Title VII,
a plaintiff must allege that he: “(1) belongs to a protected group; (2) was
subjected to unwelcome harassment; (3) the harassment complained of was
based on [his membership in a protected class]; (4) the harassment
complained of affected a term, condition, or privilege of employment; (5) the
17
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 18 of 31
employer knew or should have known of the harassment in question and
failed to take prompt remedial action.” Hernandez v. Yellow Transp., Inc.,
670 F.3d 644, 651 (5th Cir. 2012) (quoting Ramsey v. Henderson, 286 F.3d
264, 268 (5th Cir. 2002)).
An employee has a cause of action under Title VII “[w]hen the
workplace is permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.” Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citation omitted); see
also Mendoza v. Helicopter, 548 F. App’x 127, 128-29 (5th Cir. 2013). This
standard requires extreme conduct, and “simple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citation
and quotation marks omitted).
In evaluating hostile work environment claims, courts consider the
totality of the circumstances, including “the frequency of the conduct, its
severity, 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 performance.” Alaniz v. Zamora-Quezada, 591
18
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 19 of 31
F.3d 761, 771 (5th Cir. 2009) (internal citation omitted). A plaintiff must
subjectively perceive the environment to be abusive, and the work
environment must be objectively hostile or abusive. See Harris, 510 U.S. at
21-22. The “mere utterance of an epithet which engenders offensive feelings
in an employee does not sufficiently affect the conditions of employment to
implicate Title VII.” Id. at 21 (internal citation and alterations omitted).
In plaintiff’s complaint, he alleges that T-Mobile fostered a hostile
work environment based on his sex.
In his opposition brief, plaintiff
attempts to broaden the scope of this claim to include harassment on the
basis of his race and national origin as well. 42 Construing the complaint
liberally, plaintiff alleges that over the course of his four-year employment,
his coworkers harassed him because of his sex, race, or national origin by:
1. Comparing him to a slave master, 43
2. Sharing information about a documentary on Arabs’ history of
enslaving Africans, 44
3. Making negative generalizations about Arab men’s treatment of
women, 45
4. Making fun of the way Arabs sing, 46
42
43
44
45
46
R. Doc. 24 at 9.
R. Doc. 20 ¶ 36.
Id. ¶ 37.
Id. ¶ 33.
Id. ¶ 31.
19
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 20 of 31
5. Mispronouncing the word “Arab,”
6. Accusing him of not knowing how to speak to women, 47
7. Telling a customer that plaintiff was hired “for his sex appeal,” 48
8. Referring to a female coworker as his girlfriend, 49 and
9. Falsely accusing him of making unwanted comments to female
coworkers. 50
Although plaintiff includes other allegations of mistreatment by his
coworkers, these are the only instances of harassment or mistreatment with
any conceivable nexus to plaintiff’s membership in a protected group.
Taking all of these allegations as true, plaintiff has failed to allege
“extreme conduct” that “amounts to discriminatory changes in the terms and
conditions of employment.” Martin, 386 F. Supp. 3d at 739. Rather, these
instances of harassment are no more than “simple teasing, offhand
comments, and isolated incidents.” Id.; see also Mosley v. Marion Cnty., 111
F. App’x 726, 728 (5th Cir. 2004) (finding no hostile work environment
despite three incidents involving racial slurs); Vallecillo v. United States
Dep’t of Housing & Urban Dev., 155 F. App’x 764, 767 (5th Cir. 2005)
47
48
49
50
Id. ¶ 32.
Id. ¶ 19.
Id. ¶ 18.
Id. ¶ 14.
20
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 21 of 31
(finding no hostile work environment when supervisors referred to Hispanic
employee as “Che Guevara” and “an aggressive Hispanic,” which comments
“epitomize the type of utterances, epithets, and offhand comments that we
have repeatedly stated were beyond Title VII’s purview”).
Further, plaintiff’s own allegations bely any suggestion that the
harassment he experienced “interfered with his work performance.” Alaniz,
591 F.3d at 771. Plaintiff contends that during his time at T-Mobile, he
exceeded his sales goals, won awards for his performance, and was ultimately
promoted. 51 Plaintiff thus fails to state a claim for hostile work environment.
v. Retaliation
Finally, plaintiff alleges that T-Mobile retaliated against him for
complaining about the discrimination he experienced.52 In order to state a
retaliation claim, a plaintiff must allege “(1) that [he] engaged in activity
protected by Title VII, (2) that an adverse employment action occurred, and
(3) that a causal link existed between the protected activity and the adverse
action.” Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002).
An adverse employment action is “one that ‘a reasonable employee would
51
52
Id. ¶ 11.
Id. ¶¶ 87-88.
21
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 22 of 31
have found . . . [to be] materially adverse, which in [the retaliation] context
means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.’” Puente v. Ridge, 324 F. App’x 423,
429 (5th Cir. 2009) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006)). An employment action is not materially adverse if it
amounts to only “petty slights or minor annoyances that often take place at
work and that all employees experience.” Burlington, 548 U.S. at 68.
In plaintiff’s complaint, he alleges that T-Mobile retaliated against him
in two ways. First, T-Mobile allegedly issued a PIP to retaliate against him
“for his desire to transfer markets.”53 Second, after he put in his two-week
notice and informed T-Mobile that he intended to file a complaint about the
discrimination he allegedly faced, T-Mobile retaliated by investigating
plaintiff’s practice of handing out his real estate business cards to T-Mobile
customers.54
For a retaliation claim to be cognizable under Title VII, a plaintiff must
plausibly allege that the retaliation was taken in response to his participation
in a “protected activity.” “Protected activity is defined as opposition to any
practice rendered unlawful by Title VII, including making a charge,
53
54
R. Doc. 24 at 11; R. Doc. 20 ¶ 42.
Id. ¶ 47.
22
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 23 of 31
testifying, assisting, or participating in any investigation, proceeding, or
hearing under Title VII.” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385
(5th Cir. 2003) (internal quotations omitted). Indicating a desire to transfer
markets is not a protected activity. Accordingly, even if T-Mobile’s issuance
of a PIP constituted an “adverse employment action,” plaintiff’s claim
premised on the PIP is not cognizable.
Plaintiff arguably does allege that the investigation into his practice of
passing out business cards was premised on his participation in a protected
activity—he asserts that the investigation was launched after he “informed
the company that he was being discriminated against and would be filing a
formal complaint.” 55
Plaintiff does not expressly contend that the
investigation was launched because of his threat, but even if he had,
plaintiff’s retaliation claim fails because “[i]nternal investigations do not
constitute adverse employment actions.” Ortego v. Dep’t of Transp., No. 13836, 2014 WL 12521695, at *6 (E.D. La. Feb. 18, 2014) (collecting cases); see
also Smith v. Harvey, 265 F. App’x 197, 201-02 (5th Cir. 2008) (investigating
55
Id. ¶ 46.
23
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 24 of 31
employee for unusually high phone bill did not constitute materially adverse
employment action).
Finally, plaintiff contends that T-Mobile retaliated against him by
“isolating him, constantly monitoring and criticizing his work, adding
additional workload and new, draconian work conditions, and subjecting
him to threatening and abusive behavior,” all of which culminated in his
“constructive discharge as a result of his complaints of unlawful employment
practices.”56 Plaintiff alleges no facts in support of the allegations that he
was isolated, that his work was monitored or criticized, that he was subjected
to additional workload and new working conditions, or that he was ever
threatened by his colleagues for participating in a protected activity. And as
discussed in Section III.A.2.i, supra, plaintiff fails to plausibly allege that the
mistreatment he faced at work rose to the level of constructive discharge.
The Court thus dismisses plaintiff’s Title VII retaliation claim.
B.
Other Claims
Plaintiff brings three additional claims in his second amended
complaint: discrimination under the Equal Pay Act, retaliation under the
56
Id. ¶ 88.
24
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 25 of 31
Equal Pay Act, and failure to pay under the Emergency Paid Sick Leave Act
(the “EPSLA”). The Court will address each in turn.
1.
Discrimination under the Equal Pay Act
Plaintiff contends that T-Mobile discriminated against him on the
basis of his sex in violation of the Equal Pay Act. The Equal Pay Act prohibits
discrimination:
[B]etween employees on the basis of sex by paying wages to
employees in such establishment at a rate less than the rate at
which [the employer] pays wages to employees of the opposite
sex in such establishment for equal work on jobs the
performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working
conditions.
29 U.S.C. § 206(d)(1). In order to establish a claim under the Equal Pay Act,
a plaintiff must demonstrate (1) that his employer is subject to the Act; (2)
that he performed work in a position requiring equal skill, effort, and
responsibility under similar working conditions; and (3) that he was paid less
than members of the opposite sex. Jones v. Flagship Int’l, 793 F.2d 714, 72223 (5th Cir. 1986).
Plaintiff recites these elements in support of his claim: He alleges that
T-Mobile paid him “lower compensation than it paid to female employees for
equal work, the performance of which required equal skill, effort, and
25
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 26 of 31
responsibility, and which were performed under similar working
conditions.”57 He goes on to assert that the differential in pay “was not due
to seniority, merit, quantity or quality of production, or a factor other than
sex.”58 Rather, he contends it was due to his sex. 59
These conclusory allegations are insufficient to state a claim. Courts in
this district have dismissed Equal Pay Act claims as impermissibly
conclusory and unsupported when plaintiffs have alleged more factual detail
than plaintiff does here. For example, in Corken v. Stranco Field Servs.,
LLC, the plaintiff contended that her employer reduced her salary by
$25,000 per year, while simultaneously increasing pay for male employees
performing functions requiring equal skill, effort, and responsibility. No. 185566, 2018 WL 4614001, at *2 (E.D. La. Sept. 29, 2018). She also alleged
that certain male colleagues received travel expense reimbursements, but
she did not, despite doing the same work-related travel as her male
colleagues. Id. The court dismissed the plaintiff’s claim, holding that she
had “fail[ed] to specify the precise job functions she performed that were
equivalent to those performed by her male counterparts, and neglect[ed] to
articulate how she was paid less for the same work.” Id. Similarly, in
57
58
59
Id. ¶ 73.
Id. ¶ 75.
Id. ¶ 76.
26
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 27 of 31
Boudreaux v. Stranco Field Servs., LLC, the plaintiff identified two potential
male comparators with whom she worked, but failed to allege any specific
facts “about the skill, effort, or responsibility required by the performance of
either’s position.” No. 18-5569, 2019 WL 2142045, at *7 (E.D. La. May 16,
2019). Rather, much like plaintiff in this case, she relied on the conclusory
allegation that the men “performed work in a position requiring equal skill,
effort and responsibility under the same working conditions.” Id. The court
dismissed her Equal Pay Act claim, noting that she could not rely on “a mere
formulaic recitation of a cause of action’s elements.” Id.
Here, plaintiff provides even less factual support for his claims than the
plaintiffs in Corken and Boudreaux. Plaintiff’s complaint is bereft of any
“factual allegations that when assumed to be true ‘raise a right to relief above
the speculative level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007);
see also Espinoza v. San Benito Consol. Indep. Sch. Dist., 753 F. App’x 216,
219-20 (5th Cir. 2018) (affirming dismissal of Equal Pay Act claims when
plaintiffs failed to “explain how their job duties were the same as” a female
coworker’s they identified as a comparator). Plaintiff’s discrimination claim
under the Equal Pay Act is thus dismissed.
2.
Retaliation under the Equal Pay Act
27
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 28 of 31
Plaintiff also brings a claim for retaliation under the Equal Pay Act.
The Equal Pay Act prohibits any person from:
[D]ischarg[ing] or in any manner discriminat[ing] against any
employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or
related to this chapter, or has testified or is about to testify in any
such proceeding, or has served or is about to serve on an industry
committee.
29 U.S.C. § 215(a)(3). Much like claims for retaliation under Title VII, to
establish a prima facie case of retaliation under the Equal Pay Act, a plaintiff
must “demonstrate that: (1) [he] engaged in a protected activity; (2) an
adverse employment action occurred; and (3) a causal link exists between
the protected activity and the adverse employment action.” Lindsley v. TRT
Holdings, Inc., 984 F.3d 460, 469 (5th Cir. 2021) (internal quotation marks
omitted).
Plaintiff alleges that he lodged complaints with T-Mobile and the
EEOC regarding the discrimination he was subjected to under the Equal Pay
Act.60 As with his Title VII retaliation claim, plaintiff contends that T-Mobile
retaliated by “isolating him, constantly monitoring and criticizing his work,
adding additional workload and new, draconian work conditions, and
subjecting him to threatening and abusive behavior,” all of which culminated
60
R. Doc. 20 ¶ 82.
28
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 29 of 31
in his constructive discharge. 61
As discussed in Sections III.A.2.v and
III.A.2.i, supra, plaintiff has alleged no facts in support of this claim, nor has
he plausibly alleged that he was constructively discharged. His Equal Pay
Act retaliation claim thus fails for the same reasons as his Title VII retaliation
claim.
3.
Failure to Pay under the EPSLA
Finally, plaintiff claims that T-Mobile refused to pay him the full
amount he is owed under the EPSLA. Congress enacted the EPSLA under
the Families First Coronavirus Response Act in response to the pandemic.
See New York v. United States Dep’t of Labor, 477 F. Supp. 3d 1, 5 (S.D.N.Y.
2020). The EPSLA requires covered employers to provide paid sick leave to
employees who: (1) are subject to federal, state, or local quarantine or
isolation orders related to COVID-19; (2) have been advised by a health care
provider to self-quarantine due to COVID-19; (3) are experiencing symptoms
of COVID-19 and seeking a medical diagnosis; (4) are caring for an individual
subject to a quarantine or isolation order by the government or a healthcare
provider; (5) are caring for a child whose school or place of care is closed, or
whose childcare is unavailable, because of COVID-19; or (6) are experiencing
61
Id. ¶ 83.
29
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 30 of 31
any other substantially similar condition specified by the Secretary of Health
and Human Services in consultation with the Secretary of the Treasury and
the Secretary of Labor. Bruce v. Olde England’s Lion & Rose Rim, LLC, No.
20-928, 2021 WL 4953910, at *4 (W.D. Tex. Oct. 25, 2021).
Plaintiff alleges no facts supporting his claim to paid sick leave under
the EPSLA. This claim is thus dismissed.
C.
Leave to Amend
The Court should “freely give” leave to amend “when justice so
requires.” Fed. R. Civ. P. 15(a)(2); Leal v. McHugh, 731 F.3d 405, 417 (5th
Cir. 2013). “Among the permissible bases for denial of a motion to amend
are . . . repeated failure to cure deficiencies by amendments previously
allowed, . . . [and] futility of amendment.” Wright v. Allstate Ins. Co., 415
F.3d 384, 391 (5th Cir. 2005). Plaintiff has already filed three versions of his
complaint. The factual details and new causes of action plaintiff has added
in the operative complaint do not cure the deficiencies in the earlier
iterations. The Court finds that, in light of plaintiff’s repeated failure to state
a claim, granting plaintiff leave to amend a third time would likely be futile.
The Court thus dismisses plaintiff’s second amended complaint with
prejudice.
30
Case 2:22-cv-01130-SSV-MBN Document 30 Filed 01/18/23 Page 31 of 31
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion to
dismiss, and dismisses plaintiff’s second amended complaint WITH
PREJUDICE.
The Court DISMISSES defendant’s motion to dismiss
plaintiff’s first amended complaint 62 as MOOT.
New Orleans, Louisiana, this _____
18th day of January, 2023.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
62
R. Doc. 9.
31
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?