McClinton v. Sams Club 8273

Filing 65

MEMORANDUM ORDER granting 38 Motion to Dismiss; granting 44 Motion to Dismiss for Failure to State a Claim and hereby dismisses with prejudice all Mr. McClinton's claims except his retaliation claim, which remains pending. Signed by Judge Elizabeth E Foote on 9/28/2012. (crt,Keifer, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

JEROME MCCLINTON

CIVIL ACTION NO. 11-cv-2156

VERSUS

JUDGE ELIZABETH ERNY FOOTE

SAM’S EAST, INC., ET AL.

MAGISTRATE JUDGE MARK HORNSBY

MEMORANDUM ORDER
Mr. McClinton, a former employee of Sam’s Club, alleges that he was sexually
harassed by his female supervisor, discriminated against because of his race and
gender when he was passed over for other positions and ultimately terminated, and
retaliated against after he filed a police report and an E.E.O.C. charge. Mr. McClinton
also lodges state law claims of negligent and intentional infliction of emotional distress
as well as a claim of sexual harassment under Louisiana law. Mr. McClinton is
proceeding pro se in this matter. Sam’s East, Inc., Wal-Mart Associates Inc., and WalMart Stores East LP (“Defendants”) now move to dismiss all of Mr. McClinton’s claims
with the exception of his retaliation claim. [Record Documents 38 and 44]. For the
reasons given below, the Court GRANTS Defendants’ motions to dismiss. Mr.
McClinton’s retaliation claim remains pending.
I.

Factual and Procedural Background
Many of the facts alleged by Mr. McClinton do not appear on the face of the

complaint or amended complaints but rather are found in his oppositions to the
Page 1 of 23

Defendants’ motions to dismiss. While only allegations that appear of the face of the
complaint may normally be considered in determining whether the plaintiff has alleged
facts stating a claim upon which relief can be granted, pro se pleadings are held to less
stringent standards than pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519,
520-21 (1972). Pro se pleadings must be treated liberally, and dismissal under Rule
12(b)(6) is generally disfavored. U.S. v. Robinson, 78 F.3d 172, 174 (5th Cir. 1996),
Priester v. Lowndes County, 354 F.3d 414, 418 (5th Cir. 2004). Accordingly, in ruling on
Defendants’ motions the Court will consider the facts alleged in both Mr. McClinton’s
complaints and in his oppositions to Defendants’ motions to dismiss. Ultimately, the
Court’s ruling on Defendants’ motions to dismiss would not be changed if the Court
looked only at Mr. McClinton’s complaints.
In 2004, Mr. McClinton, an African-American male, worked in various capacities
for Sam’s Club and Wal-Mart in Surprise, Arizona. In 2009, Mr. McClinton transferred to
a Sam’s Club in Shreveport, Louisiana after his wife passed away from injuries sustained
in a car accident and after his mother, who lives in Shreveport, became ill. Mr.
McClinton asserts the managers at the Shreveport store passed him over for numerous
jobs for which he was qualified in favor of less-qualified female employees. [Record
Document 43, p.4]. He also claims that his manager, Amanda Charron, sexually
harassed him. He claims the managers with whom he spoke about this harassment took
no action against Ms. Charron. [Record Document 43, p.2].

Page 2 of 23

Mr. McClinton alleges several specific instances where Manager Amanda Charron
allegedly sexually harassed him. Once, when Mr. McClinton was stocking a cooler, Ms.
Charron entered the cooler and tapped Mr. McClinton on his “butt an said nice an tight
[sic]” causing Mr. McClinton to run out the other side of the cooler. [Record Document
42, p.2]. A similar incident occurred on another Sunday. Id. Mr. McClinton also alleges
Ms. Charron hugged him in front of a bread rack in full view of a manager. Id. On
another occasion Ms. Charron allegedly asked Mr. McClinton if he “put the chicken on,”
and then wrapped her arms around him and said that they “could be a great team
together if [Mr. McClinton] would just play ball.” [Record Document 42, p.2]. On
another occasion, Ms. Charron allegedly asked Mr. McClinton about the chicken again
and rubbed him while saying “see we can be a great team.” Id.
Mr. McClinton explored several avenues to address the ongoing harassment. He
spoke with his manager John about the problem twice in August, 2011. Id. He also
spoke with manager Tony and Asset Protection Manager Steve Fullilove in August,
2011. Id. None of these managers took any action against Ms. Charron. Id. On
August 26, 2011, Mr. McClinton text-messaged Human Resources Manager Rod about
the harassment problem, and Rod informed Mr. McClinton he would speak with John.
Id. Mr. McClinton did not notice a change in his work environment. Id. Mr. McClinton
subsequently filed a complaint with both the Wal-Mart Global Ethics Office and the
E.E.O.C. Id. He also spoke with manager Reba Jones who allegedly confronted Ms.

Page 3 of 23

Charron. Id. This effort proved futile. Ms. Charron informed Mr. McClinton she was
sick of having people “go to Reba on her,” and her behavior did not change. Id.
After the E.E.O.C. suggested Mr. McClinton file a police report because their case
load was so backed up they doubted that they could review his complaint in a timely
manner, Mr. McClinton filed a police report with the Shreveport Police Department.
[Record Document 42, p.3]. A sergeant at the Shreveport Police Department allegedly
told Mr. McClinton that he “was not going to do anything” and Mr. McClinton should just
“take one for the boys.” Id. Unsatisfied, Mr. Clinton spoke with a detective. The
detective contacted Ms. Charron, and she allegedly ceased disturbing Mr. McClinton for
three days; soon afterwards, however, she exposed herself to Mr. McClinton by pulling
down her pants to show a tattoo. [Record Document 32, p.2]. Mr. McClinton
attempted to speak with Human Resources Manager Rod again, but Rod said he could
not speak with Mr. McClinton because of the E.E.O.C. filing. [Record Document 42,
p.3].
Mr. McClinton claims that Ms. Charron transferred to a Texas store. [Record
document 43-1, p. 26]. Documents relating to Mr. McClinton’s termination indicate that
he was terminated on the grounds that he harassed and intimidated other employees
and caused them to fear for their safety. [Record Document 43-1, p.40]. Defendants
also terminated Mr. McClinton for use of a “personal electronic device that harms
Walmart’s legitimate business interests.” Id. Mr. McClinton claims his managers
convinced employees to make false statements against him in order to terminate him.

Page 4 of 23

[Record Document 43-1, pp. 24-26]. He also claims that he was terminated because he
filed a complaint against the Defendants with the E.E.O.C. [Record Document 32, p. 4].
Mr. McClinton filed his first Complaint on December 14, 2011, against Sam’s East,
Inc. [Record Document 1]. Mr. McClinton subsequently amended his complaint five
times, adding additional claims and additional defendants. The Court has reviewed all
Mr. McClinton’s complaints and his oppositions to Defendants’ motions and concludes
that Mr. McClinton has alleged the following claims: one Title VII sexual harassment
claim; one sexual harassment claim under 42 U.S.C. §1981; one Title VII gender
discrimination claim; one Title VII racial discrimination claim; one racial discrimination
claim under 42 U.S.C. §1981; one retaliation claim under 42 U.S.C. §2000e-3(a), and
state law claims of intentional and negligent infliction of emotional distress and sexual
harassment.
Defendants have filed two motions to dismiss Mr. McClinton’s complaints under
Fed. R. Civ. P. 12(b)(6). [Record Documents 38 and 42]. The second motion to
dismiss was filed when Mr. McClinton amended his complaint one final time after the
Defendants’ first motion to dismiss had already been filed. This ruling disposes of both
motions.
II. Law and Analysis
A.

Standard for Motion to Dismiss under Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of any claim that
fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In

Page 5 of 23

order to survive a Rule 12(b)(6) motion to dismiss, a “complaint must allege sufficient
factual matter, accepted as true, to state a claim that is plausible on its face.” Hershey
v. Energy Transfer Partners, L.P, 610 F.3d 239, 245 (5th Cir. 2010). While a complaint
attacked by a Rule 12(b)(6) motion need not contain detailed factual allegations, it must
at least allege plausible grounds from which one could infer that the elements of the
claim can be made out. Bell Atlantic Co. v. Twombly, 550 U.S. 544, 556 (2007), In re
Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). The complaint
must allege “enough fact to raise a reasonable expectation that discovery will reveal
evidence of [every element of the claim].” Bell Atlantic Co., 550 U.S. at 556.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” will not suffice. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Courts
must not, however, convert this “plausibility” requirement into an analysis of whether
the non-moving party is likely to succeed on the merits. Bell Atlantic Co., 550 U.S. at
556 (“of course, a well-pleaded complaint may proceed even if it strikes a savvy judge
that actual proof of those facts is improbable, and that a recovery is very remote and
unlikely.”) (citations omitted). As previously stated, in order to insure equal access to
the courts pleadings of litigants proceeding pro se are treated liberally. U.S. v.
Robinson, 78 F.3d 172, 174 (5th Cir. 1996).
B.

Sexual Harassment Claims

While Plaintiff’s sexual harassment allegations are styled as two claims, it is
apparent from reading Plaintiff’s complaints that the same allegations concerning the

Page 6 of 23

behavior of Ms. Charron make up the factual basis of both claims. Plaintiff’s claim that
he is entitled to relief under 42 U.S.C. §1981 need not detain this Court long. Section
1981 reads in pertinent part:
(a) Statement of equal rights
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 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.
As the Fifth Circuit has stated previously, § 1981 forbids racial discrimination in the
making and enforcement of private contracts. Bobo v. ITT, Continental Baking Co., 662
F.2d 340, 342 (5th Cir. 1981). Claims alleging discrimination on the basis of sex,
however, are not cognizable under § 1981. Davis v. Dallas Indep. Sch. Dist., 448 Fed.
Appx. 485, 490-91 (5th Cir. 2011), Carter v. Philip Morris, USA, 36 F.3d 1091, 1994 U.S.
App. LEXIS 27620 (4th Cir. 1994) (holding sexual harassment claims are not cognizable
under §1981), Wall v. AT & T Technologies, 754 F. Supp. 1084, 1094 (M.D.N.C. 1990)
(holding sexual harassment is not actionable under §1981 because Congress in 1866
did not contemplate such discrimination when securing the rights of freed slaves).
Accordingly, Defendants’ motion to dismiss Plaintiff’s § 1981 sexual harassment claim is
GRANTED.
Plaintiff also asserts a sexual harassment claim under Title VII. Under Title VII,
it is illegal “for an employer to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation,
Page 7 of 23

terms, conditions, or privileges of employment, because of such individual's... sex.” 42
U.S.C. § 2000e–2(a)(1). Title VII prohibits sexual harassment that takes the form of a
tangible employment action, such as a demotion or denial of promotion, or the creation
of a hostile or abusive working environment. Faragher v. City of Boca Raton, 524 U.S.
775, 786 (1998). The question of whether an affirmative defense is available to the
employer turns on whether the harassment is accompanied by a tangible employment
action. Id. at 807-08. A tangible employment action is a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 762 (1998). To make out
a hostile work environment claim, Plaintiff must allege facts sufficient to satisfy the
following four elements: (1) he belongs to a protected group; (2) he was subjected to
unwelcome harassment; (3) the harassment was based on sex; and (4) the harassment
affected a term, condition, or privilege of employment. Stewart v. Miss. Transp.
Comm’n, 586 F.3d 321, 330 (5th Cir. 2009).
Here, Mr. McClinton appears to embrace both the tangible-employment-action
and the hostile-work-environment theories:
The conduct of [Defendants] resulted in a hostile work environment and lead to
the improper discharge of Jerome McClinton, who due to mental concerns
brought on by the conduct of defendants and to the working conditions created
by the work environment, terminated his employment with [Defendants].
[Record Document 42, p. 3].

Page 8 of 23

Overlooking the fact that Mr. McClinton alleges at other points in his complaint that he
was terminated rather than choosing to leave, Mr. McClinton still does not adequately
plead a sexual harassment claim premised on a tangible employment action. Mr.
McClinton was not terminated by Ms. Charron, the alleged sexual-harassor, and he does
not allege that he was terminated because he failed to submit to any sexual demands of
Ms. Charron.
Neither does he plausibly allege a claim of hostile work environment. To make out
a hostile work environment claim, Plaintiff must allege facts sufficient to satisfy the
following four elements: (1) he belongs to a protected group; (2) he was subjected to
unwelcome harassment; (3) the harassment was based on sex; and (4) the harassment
affected a term, condition, or privilege of employment. Stewart v. Miss. Transp.
Comm’n, 586 F.3d 321, 330 (5th Cir. 2009). Mr. McClinton has not plead facts from
which one could plausibly infer that Ms. Charron’s actions affected a term, condition, or
privilege of his employment.
In order 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.” National R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 116, 122 (2002). In determining whether a workplace constitutes a hostile
work environment exists, courts must consider the following circumstances: (1) the
frequency of the discriminatory conduct, (2) its severity, (3) whether the discriminatory
conduct is physically threatening or humiliating, or merely an offensive utterance, and

Page 9 of 23

(4) whether the discriminatory conduct unreasonably interferes with an employee's work
performance. Ramsey v. Henderson Postmaster Gen., 286 F.3d 264, 268 (5th Cir.
2002). The working environment must be both “objectively and subjectively offensive,
one that a reasonable person would find hostile or abusive, and one that the victim in
fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)
(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993)).
In total, Mr. McClinton alleges seven instances of sexual harassment, all involving
Ms. Charron: (1) an instance of “body touching” reported on August 26, 2011; (2) Ms.
Charron touching his rear end in the cooler; (3) Ms. Charron again touching his rear end
in the cooler; (4) Ms. Charron hugging Mr. McClinton in front of another manager; (5)
Ms. Charron wrapping her arm around Mr. McClinton and asserting the two would make
“a great team;” (6) Ms. Charron again wrapping her arm around Mr. McClinton and
referring to them as a team; and (7) Ms. Charron dropping her pants to show her tattoo.
[Record Document 32, p. 2; Record Document 38-2, p. 13]. While such occurrences, if
proved, would certainly be impolite and rude, they do not create an abusive work
environment. The Fifth Circuit has made clear that because Title VII is not a general
workplace civility code, the legal threshold for an abusive work environment is high.1
1

Compare Paul v. Northrop Grumman Ship Sys., 309 Fed. Appx. 825 (5th Cir.
2009) (upholding grant of summary judgment for defendant when employee touched
plaintiff's breasts, staring in intimidating manner, placing arms around plaintiff's waist,
and rubbed plaintiff's buttocks), Gibson v. Potter, 264 Fed. Appx 397, 398 (5th Cir.
2008) (upholding grant of summary judgment for defendant when supervisor "grabbed
[plaintiff] on the buttocks," engaged in '"sex talk,” asked plaintiff for dates, and offered
his telephone number), Hockman v. Westward Commun., LLC, 407 F.3d 317 (5th Cir.
2004) (upholding grant of summary judgment when immediate supervisor described
Page 10 of 23

While each of the cases cited below reached the summary judgment stage, collectively
they draw a line separating factual scenarios that rise to the level of an abusive work
environment from those that do not. As Mr. McClinton is proceeding pro se and faces
only a motion to dismiss, he is entitled to more leeway than if a motion for summary
judgment were pending. Still, the facts alleged by Mr. McClinton simply do not state a
plausible claim of hostile work environment. The verbal remarks made my Ms. Charron
to the effect that she and Mr. McClinton would make a “great team,” while unwelcome to
Mr. McClinton, are not so offensive that a reasonable person would find them hostile or
plaintiff’s body favorably, made comments to plaintiff about the bodies of other
employees, slapped plaintiff’s behind with a newspaper, “grabbed or brushed” against
her breasts and behind, held her cheeks and attempted to kiss her, asked her to come
in early so they could be alone together, and once stood in the doorway of the ladies’
room to watch plaintiff wash her hands), and Derouen v. Carquest Auto Parts, 275 F.3d
42, 2001 WL 1223628 (5th Cir. 2001)(upholding grant of summary judgment for
defendant when co-worker attempted to grab plaintiff’s breast and later rubbed her
thigh, and when a customer twice made sexually threatening remarks to her); with
McKinnis v. Crescent Guardian, Inc., 189 Fed. Appx. 307, 310 (5th Cir. 2006) (holding
that chronic unwanted touching, including touching on the breasts and thigh over a
year-long period, repeated demands for “hugs and kisses,” and other inappropriate
behavior resulting in plaintiff's resignation, supported a hostile work environment
claim), Harvill v. Westward Comm., 433 F.3d 428, 435-36 (5th Cir. 2005) (holding that
repeated unwanted fondling and rubbing of plaintiff's breasts and buttocks and
unwanted kissing on the cheek over a seven-month period, despite her protests on
every occasion, was sufficiently severe or pervasive), and Waltman v. International
Paper Co. 875 F.2d 468 (5th Cir. 1989) (reversing grant of summary judgment for
defendant when a supervisor broadcast obscenities directed toward the plaintiff over
the public address system, supervisor urged plaintiff to have sex with a co-worker,
supervisor pinched plaintiff’s buttocks with pliers and tried to put his hands in her back
pockets, plaintiff received over thirty pornographic notes in her locker, sexually explicit
pictures and graffiti directed at her appeared on the walls, one employee threatened
her if she reported the activities, another employee stuck his tongue in her ear, and
another employee threatened her with sexual violence and then dangled her over a
stairwell more than thirty feet from the floor).
Page 11 of 23

abusive. Similarly, the alleged hugging of the plaintiff and touching of his buttocks
certainly do not rise to the level of the touching in Waltman v. Int’l Paper Co. 875 F.2d
468 (5th Cir. 1989) and Harvill v. Westward Comm., 433 F.3d 428, and do not even rise
to the level of touching found in Paul v. Northrop Grumman Ship Sys., 309 Fed. Appx.
825 (5th Cir. 2009). Neither does he allege the type of extended and unrelenting
harassment found in Harvill v. Westward Comm., 433 F.3d 428 (5th Cir. 2005) or
McKinnis v. Crescent Guardian, Inc., 189 Fed. Appx. 307, 310 (5th Cir. 2006).
The problem is not that Mr. McClinton is unlikely to prove his claim of sexual
harassment, but that if he did prove the facts alleged in his six complaints, they would
not rise to the level of create a hostile work environment. Neither is it reasonable to
expect that discovery would reveal evidence making out a claim for sexual harrassment,
as Mr. McClinton is presumably already aware of the extent of Ms. Charron’s advances,
having being at the receiving end of them, and he has had five opporunities to amend
his complaint and add new allegations. Mr. McClinton has thus failed to plead a claim
upon which relief can be granted. Accordingly, Defendants’ motion to dismiss Plaintiff’s
Title VII sexual harassment claim is GRANTED.
Mr. McClinton also alleges a sexual harassment claim under La. R.S. §23:301 et
seq. [Record Document 42, p.5]. Louisiana anti-discrimination claims are analyzed in
the same way as Title VII claims. Brown v. S.B.C. Telecom, Inc., 67 Fed. Appx. 241,
2003 WL 21108499 (5th Cir. 2003) (noting that the same analysis of federal Title VII
claims disposes of Louisiana anti-discrimination claims because “Louisiana uses federal

Page 12 of 23

jurisprudence to interpret its anti-discrimination laws”) (citing King v. Phelps Dunbar,
LLP, 743 So.2d 181, 187 (La. 1999)), Williams v. Conoco, Inc., 860 F.2d 1306, 1307 (5th
Cir. 1986) (same), Bustamento v. Tucker, 607 So. 2d 532, 539 n.9 (La. 1992) (same).
The same disposition of Mr. McClinton’s state law sexual harassment claim is therefore
appropriate. For reasons given above with respect to Plaintiff’s federal sexual
harassment claim, Defendants’ motion to dismiss Plaintiff’s state law sexual harassment
claim is GRANTED.
C.

Racial Discrimination

Mr. McClinton asserts a claims of racial discrimination under Title VII and under
42 U.S.C. §1981. [Record Document 42, p.4]. The claim of racial discrimination under
Title VII is easily disposed of, as Mr. McClinton has not yet exhausted his administrative
remedies. In order to sue under Title VII a plaintiff must first exhaust his administrative
remedies. Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002). A
plaintiff’s remedies are exhausted when he files a timely charge of discrimination with
the proper agency and receives notice of the right to sue. Id. at 379. Failure to exhaust
administrative remedies with the E.E.O.C. is properly raised in the context of a 12(b)(6)
motion. Green v. Liberty Healthcare Sys., LLC, Civ. A. No. 10-413, 2010 U.S. Dist. LEXIS
105481, 7-9 (W.D. La. 2010). Mr. McClinton’s Notice of Charge of Discrimination shows
that he alleged “sex” and “retaliation” charges before the E.E.O.C. [Record Document
44-2, p.1.]. There is no indication in the record that Mr. McClinton filed a charge of
racial discrimination before the E.E.O.C. A plaintiff who files a charge of discrimination

Page 13 of 23

with the E.E.O.C. can only assert in a subsequent civil proceeding claims that “could
reasonably be expected to grow out of the charge of discrimination.” Pacheo v. Mineta,
448 F.3d 783, 789 (5th Cir. 2006). The factual basis outlined in Plaintiff’s complaints
gives no indication that a claim of racial discrimination would reasonably grow out of
plaintiff’s allegations of sexual harassment and retaliation, both of which center on the
allegedly improper sexual advances of Ms. Charron rather than the race of Mr.
McClinton. Accordingly, the Court GRANTS the Defendants’ motion to dismiss his Title
VII racial discrimination claim.
The question remains whether Mr. McClinton has sufficiently pleaded a cause of
action for racial discrimination under § 1981. As stated previously, § 1981 forbids racial
discrimination in the making and enforcement of private contracts. Bobo v. ITT,
Continental Baking Co., 662 F.2d 340, 342 (5th Cir. 1981). Congress amended 42 U.S.C.
§ 1981 in 1991 to clarify that the statute prohibits racial discrimination in the “making,
performance, modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. §
1981(b). In order to state a viable claim for disparate treatment based on race, a
plaintiff must allege that (1) he is a member of a protected class; (2) he was qualified
for his position; (3) he suffered an adverse employment action; and (4) others similarly
situated were treated more favorably. Ellis v. Compass Group USA, Inc., 426 Fed. Appx.
292, 295 (5th Cir. 2011).2
2

Ellis did not involve a §1981 claim. Still, “the inquiry into intentional
discrimination is essentially the same for individual actions brought under sections 1981
Page 14 of 23

Under the headings “Causes of Action/Count 3: Title VII (42 U.S.C. § 2000e)/Race
Discrimination” and “Causes of Action/Count 4: Title VII (42 U.S.C. §1964, 1981),” Mr.
McClinton alleges the following:
When trying to move from under Mgr. Amanda other job came open I apply for
them an [sic] couldn’t even be seen to get the job they was giving to all female all
of which didn’t no [sic] how to do the job where I have done the job for this co.
before, in this club black are discriminated all the time there are two set of rules
one for white an [sic] one for black, if black are late for work they are fired if
white are late it ok Mary in the H M S Dept/ late everyday (white female) not
fired, Taress late (black female) Team lead for HMS fired, un known [sic] black
lady at gas station late an was fired
[Record Document 42, p. 4].
Defendants argue that Mr. McClinton fails to allege that he has suffered an injury in fact
from any of the racial discrimination mentioned in his complaint. The Court agrees. Mr.
McClinton alleges that when he tried to move to another job to avoid Ms. Charron, he
was not even interviewed for that job and it was given to an unqualified female. He
then lists a number of instances where African-American workers were fired while
similarly situated white employees kept their jobs. Nowhere in this section of his
complaint does Mr. McClinton allege facts that plausibly suggest that he was passed over
for a job opportunity because of his race. Rather, Mr. McClinton alleges that he was

and 1983 ... and Title VII.” Lauderdale v. Tex. Dep't of Crim. Justice, Inst'al Div., 512
F.3d 157, 166 (5th Cir. 2007), see also Knox v. City of Monroe, 105 Fair Empl. Prac.
Cas. (BNA) 797, 2009 U.S. Dist. LEXIS 1016 at *17 (W.D. La. 2009) (stating “because
Title VII, § 1981, and § 1983 are ‘parallel causes of action,’ courts apply the same
analysis”), LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n.2 (5th Cir. 1996) (claims
of racial discrimination brought under § 1981 are analyzed under the same evidentiary
framework applicable to claims of employment discrimination brought under Title VII).
Page 15 of 23

passed over because of his gender. The race of the woman who actually obtained the
job he was seeking is not even mentioned.
At other points in his pleadings, Mr. McClinton makes additional claims that he
was passed over for certain jobs for which he was qualified while other similarly situated
women were promoted:
I talk to John the club Manager an [sic] told him what I was looking for an he talk
to Vic my club mgr in Arizona an [sic] we all agree to a transfer for me an [sic] a
job when I come to Sam Club 8273 that I would take a over night job to get there
then he would have the Receiving job after that but he had some Associate we
was moving around so I could fill the Receiving job, but that did not happen I
move to Grocery Sale an [sic] when the Receiving came open he gave it to a
Associate [sic] that had never did the job before (Female)...
Then the Grocery team lead came open an [sic] again John gave it to an
Associate that had never did it before (Female) by this time the job of Fax n pull
came open again a job I have done before but could not get a [sic] interview for
it an it was given to a (Female)
[Record Document 43, p.4]
Once again, Mr. McClinton does not allege that any racial discriminatory intent was
involved in these decisions. Indeed, he does not even specify the race of the promoted
employees, simply stating that they are women. While pro se complaints must be
treated liberally, there is a limit to the amount of leeway a pro se plaintiff may be given.
The Court will not read in claims that simply are not present on the face of the
complaint. Despite the “race discrimination” heading contained in his final amended
complaint, Mr. McClinton nowhere alleges any facts that plausibly suggest that
Defendants failed to hire him because of his race. Accordingly, the Court GRANTS the
Defendants’ motion to dismiss Mr. McClinton’s § 1981 racial discrimination claim.
Page 16 of 23

D.

Gender Discrimination

Mr. McClinton asserts a claim of gender discrimination under Title VII, alleging the
following:
13. The facts alleged above are incorporated by reference.
14. Mr. McClinton a Black man was intentionally discriminated against by his
employers. As alleged above, Mr. McClinton was singled out an treated less
favorably than others similarly situated because of his gender. Specifically, Mr.
McClinton was terminated for not dropping the E.E.O.C. charge an [sic] for filing a
police report on manage [sic] Amanda.
15. Mr. McClinton’s gender was a motivating factor in his employers’ [sic] adverse
employment actions. (male)
...
16. Mgr. Amanda (white female) was only transfer [sic] to another store.
[Record Document 32, p.4].
No additional facts alleging gender discrimination in any employment decision involving
Mr. McClinton other than his termination are alleged above paragraphs thirteen through
sixteen. To establish a prima facie case of employment discrimination under Title VII,
Mr. McClinton must show: (1) he is a member of a protected class; (2) he was qualified
for the position at issue; (3) he suffered an adverse employment action; and (4) he was
replaced by someone outside of his protected class or otherwise treated less favorably
than similarly-situated employees outside the protected class. Okoye v. Univ. of Tex.
Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).
Mr. McClinton has alleged no facts in support of his gender discrimination claim
that plausibly suggest that his gender was a motivating factor in the decision to
Page 17 of 23

terminate him. Rather, Mr. McClinton makes a number of conclusory statements. He
claims that he was fired because he filed an E.E.O.C. charge. While this statement
appears to assert a retaliation claim, it does not allege any facts that raise a reasonable
expectation that discovery would uncover evidence supporting the allegation that he was
terminated because of his gender. Mr. McClinton further claims that he was intentionally
discriminated against by his employers, that he was singled out and treated less
favorably than others similarly situated because of his gender, and that gender was a
motivating factor in the Defendants’ “adverse employment actions.” These conclusory
statements simply rephrase the legal standards for gender discrimination claims; they
allege no facts that plausibly support a gender discrimination claim in this particular
case. A pleading compromised of “labels and conclusions” or “a formulaic recitation of
the elements of a cause of action” does not satisfy Rule Eight of the Federal Rules of
Civil Procedure. Singleton v. Labor Finders, Civ. A. No. 11-732, 2011 U.S. Dist. LEXIS
148832 at *4 (W.D. La. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
Mr. McClinton’s allegation that Ms. Charron was merely transferred to another
store while Mr. McClinton was terminated after the alleged sexual harassment likewise
does not plausibly plead a claim of gender discrimination. The Fifth Circuit has held that
in order to be “similarly situated” an employee must be treated differently under “nearly
identical” circumstances. Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir. 2005).
“Employees with different responsibilities, different supervisors, different capabilities,
different work rule violations, or different disciplinary records are not considered to be

Page 18 of 23

‘nearly identical.’” Mosley v. Roadway Express Inc., Civ. A. No. H-07-1406, 2009 U.S.
Dist. LEXIS 32850 at *14 (S.D. Tex. 2009). Mr. McClinton alleges elsewhere that Ms.
Charron was his manager; she was necessarily, then, an employee with different
responsibilities and a different supervisor than Mr. McClinton. The bare allegation that
she was transferred to another store while Mr. McClinton was fired is therefore
insufficient to plausibly raise a gender discrimination claim.
Accordingly, the Court GRANTS Defendants’ motion to dismiss Mr. McClinton’s
gender discrimination claim.
E.

Remaining State Law Claims
Finally, Mr. McClinton raises state law claims of intentional and negligent infliction

of emotional distress. To state a claim for intentional infliction of emotional distress
("IIED") under La. R.S. §23:301 et seq, a plaintiff must show: "(1) that the conduct of
the defendant was extreme and outrageous; (2) that the emotional distress suffered by
the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional
distress or knew that severe emotional distress would be certain or substantially certain
to result from his conduct." McCoy v. City of Shreveport, 492 F.3d 551, 563 (5th Cir.
2007) (quoting White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991)). The conduct
alleged must be "so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in
a civilized community." Id. The threshold for outrageous conduct is high.
Wilson-Robinson v. Our Lady of the Lake Reg'l Med. Ctr., Inc., 2011 U.S. Dist. LEXIS

Page 19 of 23

139937 at *10 (M.D. La. 2011). Cases arising in the workplace are limited to situations
where the distress is "more than a reasonable person could be expected to endure" and
the offending conduct is "intended or calculated to cause severe emotional distress."
Nicholas v. Allstate Ins. Co., 765 So.2d. 1017, 1026 (La. 2000). Ordinary employment
disputes, even those involving discrimination and sexual harassment, will rise to the level
of IIED only in the most unusual of cases. Id. at 1027.
Mr. McClinton alleges that the “actions of Amanda Charron” constituted intentional
infliction of emotional distress. [Record Document 42, p.5]. The Court assumes that Mr.
McClinton intends to refer to the facts alleged in connection with his sexual harassment
claim. The question is therefore whether Mr. McClinton has plausibly plead actions of
Ms. Charron that are "so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community." McCoy v. City of Shreveport, 492 F.3d 551, 563
(5th Cir. 2007). The Court is not convinced that Mr. McClinton has plead facts that raise
the reasonable possibility that discovery will lead to evidence of extreme and outrageous
behavior on the part of Ms. Charron. Mr. McClinton has had five opportunities to amend
his complaint and to describe Ms. Charron’s behavior towards him. While inappropriate
and unprofessional, the three hugs and two pinches on the rear Mr. McClinton describes
do not approach the level of atrocious behavior required to make out a claim of
intentional infliction of emotional distress. See e.g. Smith v. Amedisys Inc., 298 F.3d
434 (5th Cir. 2002) (upholding grant of summary judgment for defendants on plaintiff’s

Page 20 of 23

IIED claim where one supervisor entered plaintiff’s hotel room and attempted to have
her lay with him in bed, frequently held plaintiff’s hand and put his arms around her, and
where another supervisor suggested plaintiff prostitute herself to obtain business for the
company). Neither is the Court is persuaded that there is a reasonable expectation that
discovery will lead to evidence sufficient to meet the “extreme and outrageous”
threshold. Mr. McClinton consistently describes the same seven instances in his six
complaints, and it is implausible to think that discovery would uncover other happenings
between Mr. McClinton and Ms. Charron that have not already been alleged.
As the actions of Ms. Charron do not rise to the level of being “extreme and
outrageous,” the Court need not address whether Mr. McClinton’s negligent infliction of
emotional distress action is barred by the Louisiana Workers’ Compensation Act. La. R.S.
§23:1032(A). Furthermore, because Ms. Charron’s actions are not sufficiently extreme
and outrageous to state a claim of intentional infliction of emotional distress, a fortiori
they do no fall into the category of “having an especial likelihood of genuine and serious
mental distress” as required by Moresi v. State Through Dept. Of Wildlife and Fisheries,
567 So.2d 1081, 1096 (La. 1990).
Accordingly, the Court GRANTS Defendants’ motion to dismiss Mr. McClinton’s
claims of negligent and intentional infliction of emotional distress.
F.

Retaliation Claim

Although no heading for a claim of retaliation for his E.E.O.C. filing and obtaining
of a police report is found in his complaints, Mr. McClinton makes clear that he intends to

Page 21 of 23

pursue a Title VII retaliation claim. So long as the complaint alleges facts upon which
relief can be granted, it states a claim even if it “fails to categorize correctly the legal
theory giving rise to the claim.” Dussouy v. Gulf Coast, 660 F.2d 594, 604 (5th Cir.
1981). 42 U.S.C. §2000e-3(a) establishes a claim for retaliation against an employee
who files an E.E.O.C. complaint:
(a) Discrimination for making charges, testifying, assisting, or participating in
enforcement proceedings: It shall be an unlawful employment practice for an
employer to discriminate against any of his employees or applicants for
employment, for an employment agency, or joint labor-management committee
controlling apprenticeship or other training or retraining, including on-the-job
training programs, to discriminate against any individual, or for a labor
organization to discriminate against any member thereof or applicant for
membership, because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing under this subchapter.
42 U.S.C. §2000e-3(a).
Mr. McClinton repeatedly asserts that he was terminated because he filed a police report
and a charge with the E.E.O.C. Under the heading “Gender Discrimination,” he writes,
“Mr. McClinton was terminated for not dropping the E.E.O.C. charge an [sic] for filing a
police report on manage [sic] Amanda.” [Record Document 32, p.4]. Similarly, in his
opposition to the Defendant’s first motion to dismiss, he claims, “Plaintiff was a former
employee of Sam’s Club located at 7400 Youree Dr. Shreveport, Louisiana, where I was
terminated on December 7, 2011 for not droping [sic] the E.E.O.C. Charge against
manager Amanda an [sic] not dropping the Police report against her.” [Record
Document 31-1, p.4], see also [Record Document 43-1, p.44]. As Defendants have not

Page 22 of 23

moved to dismiss this retaliation claim, it remains pending. The Court expresses no
opinion on whether it has been adequately plead.
III.

Conclusion
For the reasons given above, the Court GRANTS Defendants’ two motions to

dismiss [Record Documents 38 and 44] and hereby dismisses with prejudice all Mr.
McClinton’s claims except his retaliation claim, which remains pending. September 28,
2012.

Page 23 of 23