Stewart v. Daigle Industries, LLC et al

Filing 12

RULING and ORDER: The 5 Motion to Dismiss for Failure to State a Claim is GRANTED IN PART, and that Plaintiffs claims of race-based employmentdiscrimination under 42 U.S.C. § 1981 be and are hereby DISMISSED. Plaintiff shall file an amended complaint curing the deficiencies set forth herein, within 21 days of the date of this Order. Daigle shall file its response to Plaintiffsamended complaint within 14 days after service of Plaintiffs amended complaint. Signed by Judge Brian A. Jackson on 1/18/2023. (ELW)

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UNITED STATES DISTRICT COUET
MIDDLE DISTRICT OF LOUISIANA
LANELL STEWART CIVIL ACTION
VERSUS
DAIGLE INDUSTRIES, LLC, ET AL. NO. 22-00487-BAJ-SDJ

RULING AND ORDER
Plaintiff is a truck driver, previously employed by Defendant Daigle
Industries, LLC ("Daigle"). In this action, Plaintiff contends that during her tenure
at Daigle she suffered harassment, unequal treatment, retaliation, and even assault,
due to her gender and race (African-American). Allegedly, these abuses began on
August 12, 2019, when "Mr. Noah," a male co-worker, "pulled out his penis while

standing directly in front of [Plaintiff]," and culminated six weeks later, on September
27, when Daigle informed Plaintiff "that the company accepted her resignation"
despite the fact that Plaintiff "had not resigned." (Doc. 1 at ^ 7, 10, 31).
Plaintiff asserts that between these bookends, she repeatedly complained to
her supervisors, to HR, and even to Daigle's top management about her August 12
encounter with "Mr. Noah." (Id. at ^ 11-26). In response, Plaintiffs supervisors

minimized the incident, and HR brushed off Plaintiffs complaints. (See id.). Daigle s
Chief Operating Officer allegedly went so far as to say "that if he 'disciplined all male
drivers who pulled out their penis in front of female employees then he would have
no drivers.'" (Id. at ^ 26). Plaintiff alleges that, after approximately three weeks,

Daigle grew tired of her complaints and began issuing unjustified disciplinary

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infractions against her, paving the road for her forced "resignation" on September 27.

(Id. at IfH 27-35).
On June 10, 2022, Plaintiff initiated this action, alleging claims of race-based
hostile work environment, disparate treatment, and retaliation, in violation of 42
U.S.C. § 1981, and employer liability for sexual assault under Louisiana law. (Id. at

^ 38-90). Inexplicably, despite having submitted a complaint replete with references
to "sexual harassment," Plaintiff fails to allege any claim ofsex-based discrimination

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., or Title VII's
state law equivalent, the Louisiana Employment Discrimination Law, La. R.S.

§ 23:332, et seq. ("LEDL").
Now Daigle moves to dismiss Plaintiffs complaint, arguing that Plaintiffs
claims are not plausibly alleged, and that, in any event, Plaintiffs state law assault
claim is untimely. (Doc. 5-1). Plaintiff opposes Daigle's motion, in part. (Doc. 6).

It hardly bears repeating that, to survive dismissal at the pleadings stage, the
complaint must contain "sufficient factual matter, accepted as true, to 'state a claim

to relief that is plausible on its face,'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570 (2007)), and that when
conducting its inquiry, the Court accepts all well-pleaded facts as true and views
those facts in the light most favorable to the plaintiff. Bustos v. M'artini Club Inc.,

599 F.3d 458, 461 (5th Cir. 2010). Here, Plaintiffs assault claim passes the bar. First,
Louisiana's Protection for Victims of Sexual Assault Act (the "Act") expressly defines
civil sexual assault to include conduct of the type Plaintiff alleges against "Mr. Noah ;

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that is, "the intentional . .. [e]xposure of the genitals ... in any public place ... with
the intent of arousing sexual desire or which appeals to prurient interest or is
patently offensive. La. R.S. § 46:2184 (incorporating by reference La. R.S.

§ 14:106(A)(1)). Plaintiffs assault claim is obviously not time-barred on its face,
because Plaintiff filed her action within three years of her alleged encounter with
"Mr. Noah." La. C.C. art. 3496.2. Finally, under Louisiana law, Daigle—as "Mr.

Noah's" employer—may be liable for "Mr. Noah's" tortious on-the-job conduct. La.
C.C. art. 2320.

Plaintiffs employment discrimination claims under 42 U.S.C. § 1981 are
another matter. First, Plaintiffs opposition fails to address her claims of disparate
treatment and retaliatory discharge, instead focusing solely on her hostile work
environment claim. (Doc. 6 at pp. 5-6). "[T]his Court has repeatedly admonished that
it will not speculate on arguments that have not been advanced, or attempt to develop
arguments on a party's behalf." Doe v. Bd. of Supervisors of Univ. of Louisiana Sys.,
— F.Supp.Sd -— 2023 WL 143171, at *17 at n. 13 (M.D. La. Jan. 10, 2023). Pursuant
to the Court's Local Civil Rules, and consistent with the general rule that a party's
failure to adequately brief an issue acts as a waiver, Plaintiff has (for present
purposes) waived any argument that her claims of disparate treatment and
retaliatory discharge survive dismissal. Id. (citing M.D. La. LR 7(d)).
More fundamentally, however, on the present showing it appears that Plaintiff
has chosen the wrong legal avenue for her workplace discrimination claims.

"[F]ederal law is quite clear that § 1981 prohibits only race discrimination, not sex

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discrimination." Jones v. Cont'l Corp., 789 F.2d 1225, 1231 (6th Cir. 1986) (citing
Runyon v. McCrary, 427 U.S. 160 (1976)). Put differently, "sex discrimination is not

cognizable under § 1981." Bobo v. ITT, Cont'l Baking Co., 662 F.2d 340, 345 (5th Cir.
1981). Here, while Plaintiff has plausibly alleged sex-based discrimination at Daigle,
her complaint makes only one allegation ofrace-based discrimination:
72.

Upon information and belief, a white female employee, Alicia, filed a
sexual harassment claim against Rev, a black male employee. This
complaint was accepted and Rev was later terminated despite being
cleared of wrong-doing.

(Doc. 1-2 at ^ 72).
This single allegation is buried deep in Plaintiffs complaint, and (as alleged)
applies only to her disparate treatment and retaliation claims—i.e., the claims
Plaintiff has waived for present purposes, supra. Mm'eover, this information and

belief allegation is unaccompanied "by sufficient additional detail to make the
allegation 'plausible on its face/" and must be disregarded for present purposes. See
McLin v. Twenty-First Jud. Dist., — F.Supp.Sd -—, 2022 WL 2751611, at *5 (M.D.

La. July 13, 2022) (Jackson, J.) (citing Twombly, 550 U.S. at 551, 557). As a result,
Plaintiff lacks any plausible basis to support a claim of race-based hostile work
environment in violation of § 1981.
"Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive
issue of law." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). As a matter of law,
1981 prohibits only race-based discrimination. Cont'l Corp., 789 F.2d at 1231; Bobo,

662 F.2d at 345. Having failed to plausibly allege race-based discrimination,

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Plaintiffs § 1981 claims must be dismissed.
When a complaint fails to state an actionable claim, the Court should generally

give the plaintiff the chance to amend before dismissing the claim with prejudice,
unless it is clear that to do so would be futile. See Jones v. Robinson Prop. Grp., L.P.,

427 F.3d 987, 994 (5th Cir. 2005) ("Rule 15(a) requires a trial court to grant leave to
amend 'freely,' and the language of this rule 'evinces a bias in favor of granting leave
to amend." (internal quotations omitted)); Great Plains Trust Co. v. M.organ Stanley

Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.2002) ("district courts often afford
plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a
case, unless it is clear that the defects are incurable ). Here, it is not clear on the
present showing that Plaintiffs employment discrimination claims are necessarily
futile—even her race-based discrimination claims. Thus, Plaintiff will be afforded the
opportunity to amend, to supplement and amplify her allegations of race-based
discrimination, and to properly allege sex-based discrimination under Title VII and

the LEDL.
Accordingly,
IT IS ORDERED that Daigle's IVtotion To Dismiss (Doc. 5) be and is hereby
GRANTED IN PART, and that Plaintiffs claims of race-based employment
discrimination under 42 U.S.C. § 1981 be and are hereby DISMISSED.

IT IS FURTHER ORDERED that Plaintiff shall file an amended complaint
curing the deficiencies set forth herein, within 21 days of the date of this Order.
Plaintiffs failure to timely submit an amended complaint shall be deemed a waiver

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of Plaintiffs right to amend, resulting in dismissal with prejudice of Plaintiffs claims
under 42 U.S.C. § 1981.

IT IS FURTHER ORDERED that Daigle shall file its response to Plaintiffs
amended complaint within 14 days after service of Plaintiffs amended complaint.
The deadlines set forth in this Order will not be modified or extended
absent a showing of good cause.

^

Baton Rouge, Louisiana, this *° day (^January, 2023

CL
JUDGE BRIAN A. J^C^SON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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