King v. Interstate Hotels and Resorts

Filing 32

RULING granting in part and denying in part 27 Motion to Dismiss for Failure to State a Claim. The Motion is GRANTED as it pertains to the plaintiff's claim for slander, and DENIED as to the plaintiff's claims for sex discrimination and retaliation. Signed by Judge James J. Brady on 7/25/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
BRANDON LEON KING
CIVIL ACTION
VERSUS
NO. 15-779-JJB-RLB
INTERSTATE HOTELS AND RESORTS
RULING
This matter is before the Court on a Motion to Dismiss (Doc. 27) brought by the defendant,
Interstate Hotels and Resorts (“Interstate”).1 The plaintiff, Brandon Leon King (“King”), filed an
opposition2 (Doc. 30) and the defendant filed a reply brief (Doc. 31). Oral argument is unnecessary.
The Court’s jurisdiction exists pursuant to 28 U.S.C. § 1331. For the reasons stated herein, the
defendant’s Motion to Dismiss (Doc. 27) is GRANTED in part and DENIED in part.
I.

BACKGROUND
In February 2014, King began working for Interstate as a front office supervisor. In July

2014, King attended a concert in New Orleans with his supervisor. Based on allegations of
unwanted advances by his female supervisor towards him, King filed the instant action asserting
claims of sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964 (“Title
VII”), as well as slander. See Second Am. Compl. 5, Doc. 26; Attach. to Second Am. Compl., Doc.
26-1, at 8.
On November 19, 2015, King filed a pro se Complaint, which included his Notice of
Dismissal and Right to Sue issued by the Equal Employment Opportunity Commission (“EEOC”)

The defendant asserts that the plaintiff improperly named “Interstate Hotels and Resorts” as the defendant in this
matter. Def.’s Supp. Mem. 1 n.1, Doc. 27-1. The defendant asserts that the proper defendant is “ Interstate Management
Company, LLC,” because at all relevant times the plaintiff was employed by that entity. Id. For the purposes of this
ruling, the Court will refer to the defendant as “Interstate.”
2
Although the document is entitled, “Plaintiff’s Motion to Dismiss Defendant’s Motion for Dismissal,” the substance
of the plaintiff’s motion is an opposition to the defendant’s motion to dismiss. Therefore, the Court treats the plaintiff’s
“motion to dismiss” (Doc. 30) as an opposition.
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and related EEOC Charge documents. See Compl., Doc. 1. King did not, however, complete the
Court’s EEOC Complaint Form. Id. The Court subsequently ordered King to amend his Complaint
and include Parts 1, 3, 4 and 5 of the Court’s EEOC Complaint Form within 30 days. See Order
1–2, Doc. 4.
King then filed an Amended Complaint, which purported to assert claims under Title VII
and consisted of the EEOC Complaint Form and attached Exhibits. See First Am. Compl., Doc. 5.
In a section dedicated to a narrative of the facts, the First Amended Complaint merely referred to
“Attached.” See First Am. Compl. 2, Doc. 5. The attachments included: (1) an EEOC letter
acknowledging receipt of the plaintiff’s charge; (2) the first page of the plaintiff’s EEOC Charge
of Discrimination (“EEOC Charge”); and (3) eight photographs (one photograph of an empty table,
six photographs of food items in a refrigerator, and one photograph of a man and a woman).
See First Am. Compl., Ex. 1 at 1–2, Doc. 5-2; Ex. 2 at 1–8, Doc. 5-2. The EEOC Charge included
a single paragraph describing King’s relationship with his supervisor and a dispute regarding food
in an office refrigerator. First Am. Compl., Ex. 1 at 2, Doc. 5-2.
Interstate then moved to dismiss King’s claims for sex discrimination and retaliation
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Def.’s Mot. to Dismiss 1,
Doc. 12. The Court previously ruled that King’s First Amended Complaint failed to state a claim
upon which relief may be granted as to King’s claims for sex harassment and retaliation.
See Ruling 4–5, Doc. 25. The Court exercised its discretion to grant King leave to amend his
complaint using a form provided by the Court. Id.
Thereafter, King filed a Complaint for Employment Discrimination (Doc. 26) (“Second
Amended Complaint”). Attached to the Second Amended Complaint are: (1) an EEOC Charge
and related documents; (2) a medical record; (3) a description of King’s claim (referring back to
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Section III of the complaint form, “Statement of Claim”); and (4) a list of King’s proposed
damages. See Attach. to Second Am. Compl., Doc. 26-1, at 1–9. In short, there are two relevant
portions of the attachment to the Second Amended Complaint: the EEOC Charge and King’s
description of his claims.3 King’s EEOC Charge of Discrimination states in its entirety:
I began my employment with Interstate Hotels and Resorts, on February 17, 2014,
most recently as a Front Office Supervisor earning $11.65 per hour. On July 20,
2014, Ms. Jessica Mitchell, General Manager, and I attended a concert in New
Orleans. She also asked me to book two rooms under my name and said everything
was on her adding that she did not want everyone to know. I felt obligated because
she is the boss. She would send me texts with hearts and would call me honey, baby
and love. She also wanted us to go to lunch and dinner together. I would decline
most of the time, but she was the boss. It was after this concert, I dropped her from
my facebook page, and that is when I noticed a change in Ms. Mitchell. I am not
attracted to her, and so I backed off from her. This is when she started to slander
my name to the staff. I told her that I just wanted to do my job, and nothing more.
I spoke with Mr. Brad Dew, Area Manager, about Ms. Mitchell, and her efforts to
turn the staff against me, because I would not be with her. Mr. Dew did nothing.
While I was away at training, employees used my office refrigerator. When I
returned, I found the employees [sic] food in the refrigerator was spoiled and
outdated, so I tossed it. Mr. Dew said that I had crossed the line, and fired me. On
October 23, 2014, I was discharged from the company. The company employs over
15 persons.
According to the company, I was fired for disposing of employees food out of a
refrigerator that was in my office, and for accepting $20 from a guest for a discount
form.
I believe I have been discriminated against because of my sex, Male, and retaliated
against in violation of Title VII of the Civil Rights Act of 1964, as amended.
Attach. to Second Am. Compl., Doc. 26-1, at 1–2. King’s description of his claims states:
The Plaintiff was subjected to retaliation, sexual harassment, and slander. Etc. in
the worst way. The Plaintiff has submitted witness statements as well to the court
of the hostile work environment conditions Mr. King endured. Also the EEOC
review the voice recording as proof of the unwanted sexual content that the Plaintiff
was forced to endure at the workplace by Jessica Mitchell during meetings, text
3

The factual narratives are found within an attachment to the Second Amended Complaint, which are referenced
within the Second Amended Complaint. Thus, these factual narratives are properly considered by the Court in ruling
on this Rule 12(b)(6) motion. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007) (stating
that a Court may consider the factual allegations contained within or incorporated by reference to the amended
complaint).

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messages, phone calls, on the job, social media etc. The Plaintiff’s managed to
retrieve the voice recording and provide the recording to the EEOC. Jessica
Mitchell introduces Mr. King’s, on tape, to a hostile work environment while being
forced to answer question concerning sex during a management meeting. The Vice
President of Operations (Brad Drew) confirmed that the recording other associates
was a violation of company policy to the Plaintiff via email, but did nothing to Ms.
Mitchell for the violation. (see Plaintiff exhibits). Plaintiff was repeatedly violated
by Ms. Mitchell and Interstate Hotels and Resorts did nothing to protection his
rights (Title VII of Civil Rights Act of 1964) except subject Mr. King to further
violations.
Attach. to Second Am. Compl., Doc. 26-1, at 8.
Interstate brings the instant Rule 12(b)(6) Motion to Dismiss (Doc. 27), arguing that the
factual allegations in King’s Second Amended Complaint are again insufficient to state a claim
upon which relief can be granted for slander, sex discrimination, or retaliation. See Def.’s Supp.
Mem. 4, Doc. 27-1.
II.

RULE 12(B)(6) STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a pleading that fails to

state a claim upon which relief can be granted. To survive a motion to dismiss under Rule 12(b)(6),
a complaint must contain sufficient factual content from which the Court may draw a reasonable
inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). In ruling on a motion to dismiss, the Court accepts all well-pleaded, non-conclusory
facts in the complaint as true and evaluates all inferences derived from those facts in the light most
favorable to the plaintiff. Bass v. Stryker Corp., 669 F.3d 501, 506 (5th Cir. 2012). The Court may
consider the complaint itself as well as documents attached to the complaint or documents
incorporated into the complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322–23 (2007). While a pro se plaintiff is held to less stringent standards than lawyers,
“conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice
to prevent a motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)
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(quoting S. Christian Leadership Conference v. Supreme Court of State of La., 252 F.3d 781, 786
(5th Cir. 2001)).
III.

DISCUSSION
A.

Slander

In order to state a claim for slander, a form of defamation, a plaintiff must allege: (1) a
defamatory statement concerning another; (2) falsity of the statement; (3) an unprivileged
publication to a third party; (4) fault (negligence or greater) on the part of the publisher; and (5)
resulting injury. Costello v. Hardy, 864 So. 2d 129, 139 (La. 2004).
Here, the plaintiff states in the EEOC Charge that his supervisor “started to slander my
name to the staff.” Attach. to Second Am. Compl., Doc. 26-1, at 1. The plaintiff does not identify
any defamatory statements, nor does he allege that any statement made about him was false.
Moreover, he does not indicate how the alleged slander injured him. In his opposition (Doc. 30),
the plaintiff argues that Interstate slandered him by: (1) asking its own employees questions about
him; and (2) submitting a position statement (allegedly containing “untruths”) to the EEOC. See
Pl.’s Opp’n 5–6, Doc. 30. However, the plaintiff may not cure his deficient pleading through
arguments in briefs. Accordingly, the Court finds that King has failed to state a claim upon which
relief may be granted as to his slander claim.
B.

Sex Discrimination

Title VII prohibits employers from discriminating against any individual with respect
to “compensation, terms, conditions, or privileges of employment,” because of such
individual’s sex. 42 U.S.C. § 2000e-2(a)(1); Shepherd v. Comptroller of Pub. Accounts of State of
Tex., 168 F.3d 871, 873 (5th Cir. 1999). Harassment is a form of discrimination affecting terms,
conditions, and privileges of employment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63–64
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(1986). There are two forms of harassment: quid pro quo and hostile work environment. See Wyatt
v. Hunt Plywood Co., Inc., 297 F.3d 405, 409 (5th Cir. 2002).
To state a claim for quid pro quo harassment, a plaintiff must establish that: (1) he suffered
a tangible employment action that (2) resulted from his acceptance or rejection of a supervisor’s
alleged sexual advances. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753–54 (1998).
Meanwhile, to state a claim of hostile work environment, a plaintiff must establish that: (1) he
belongs to a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment
was based on sex; (4) the harassment complained of affected a term, condition or privilege of
employment; and (5) the employer knew or should have known about the harassment and failed to
take proper action. Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 320 (5th Cir. 2009). To affect
a term, condition or privilege of employment, the harassment “must be sufficiently severe or
pervasive so as to alter the conditions of employment and create an abusive working environment.”
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002).
Here, the Court finds that the factual narratives contained in the entire EEOC Charge4 and
the attached description of his claims are sufficient to state a claim upon which relief may be
granted as to both forms of harassment. Specifically, the plaintiff has adequately alleged quid pro
quo harassment because he alleges that he was terminated after he rejected his supervisor’s sexual
advances. See Attach. to Second Am. Compl., Doc. 26-1, at 1–2. Additionally, the plaintiff has
adequately alleged a hostile work environment claim because he alleges that his supervisor made
comments of a sexual nature to him in text messages, phone calls, on the job, and via social media.
See Attach. to Second Am. Compl., Doc. 26-1, at 8. The plaintiff also alleges that his supervisor

In this Court’s prior ruling, it only considered the first page of the EEOC Charge because that was all that was
attached to King’s First Amended Complaint. In the Second Amended Complaint, King attached a second page of the
EEOC Charge.
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forced him to answer questions about sex during meetings. Id. Viewing these factual allegations
in a light most favorable to the plaintiff, one could plausibly infer that his supervisor’s conduct
affected a term, condition, or privilege of the plaintiff’s employment. Moreover, the facts are
sufficient to plausibly infer that the plaintiff was subjected to the type of severe and pervasive
sexual harassment for which Title VII provides relief. Id.
C.

Retaliation

Title VII prohibits discrimination against an employee in retaliation for the employee’s
opposition to the employer’s illegal discrimination practices or the employee’s participation in
Title VII enforcement proceedings. 42 U.S.C. § 2000e-3(a). To state a claim of retaliation under
Title VII, a plaintiff must allege facts that show: (1) he engaged in statutorily protected conduct;
(2) he suffered an adverse employment action; and (3) there is “some causal relation” between the
two events. Evans v. City of Hous., 246 F.3d 344, 352 (5th Cir. 2001). An individual engaged in a
“protected activity” if the individual: (i) made a charge, testified, assisted or participated in any
manner in an investigation or hearing under Title VII; or (ii) opposed any practice made an
unlawful employment practice by Title VII. Haynes v. Pennzoil Co., 207 F.3d 296, 299
(5th Cir. 2000) (citing 42 U.S.C. § 2000e-3(a)).
In ruling on Interstate’s first Motion to Dismiss, this Court previously held that King failed
to state a claim upon which relief may be granted with respect to his claim for retaliation.
See Ruling 4–5, Doc. 25. Specifically, the Court held that King failed to allege facts from which
one could plausibly infer that he engaged in a protected activity or that he suffered any adverse
employment action. Id. at 5. Here, King’s Second Amended Complaint cures these deficiencies.
First, the Second Amended Complaint alleges that the plaintiff opposed his supervisor’s sexual
harassment by reporting it to the Area Manager, Brad Dew. See Attach. to Second Am. Compl.,
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Doc. 26-1, at 1–2. Taken as true, and in a light most favorable to the plaintiff, this factual allegation
sufficiently states that the plaintiff engaged in statutorily protected conduct by opposing sexual
harassment. Second, the Second Amended Complaint also alleges that the plaintiff suffered an
adverse employment action because the plaintiff was terminated. See id. Finally, given the facts
alleged in the Second Amended Complaint, one could plausibly infer that there is some causal
connection between the two events. Therefore, the plaintiff has adequately pleaded a retaliation
claim.
IV.

CONCLUSION
For the reasons stated above, the defendant’s Motion to Dismiss (Doc. 27) is GRANTED

in part and DENIED in part. Specifically, the defendant’s Motion is GRANTED as it pertains
to the plaintiff’s claim for slander, and DENIED as to the plaintiff’s claims for sex discrimination
and retaliation.
Signed in Baton Rouge, Louisiana, on July 25, 2016.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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