Alexis v. Sholom Shaller Family East Campus
ORDER: IT IS HEREBY ORDERED that the Motion to Dismiss 6 is GRANTED and the Complaint is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by The Hon. Paul A. Magnuson on 11/17/2021. (LLM)
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civ. No. 21-1882 (PAM/DTS)
MEMORANDUM AND ORDER
Sholom Shaller Family East Campus,
This matter is before the Court on Defendant’s Motion to Dismiss.
following reasons, the Motion to Dismiss is granted.
Plaintiff Jean Alexis is a native of Haiti. (Compl. (Docket No. 3) ¶ 10.) He alleges
that he worked as a nursing assistant at a nursing-home facility operated by Sholom Homes
East, Inc. 1 (“Sholom”) for more than three years. (Id.) Alexis was fired in October 2020;
he contends that his termination was “pretexted under different discriminatory maneuvers
or motives to harass, coerce, retaliate against the Plaintiff.” (Id.)
In particular, Alexis alleges that in August 2019 the “day nurse manager,” a white
woman named Barbara Hickman, “targeted the plaintiff with a series of false claim
propaganda.” (Id. ¶ 11.) Alexis alleges that two other nurses complained to Ms. Hickman
that Alexis was not charting his interactions with patients correctly or was failing to chart
some interactions. When Alexis sent an email in response, the “defendant” “throw
Defendant avers that its correct name is Sholom Homes East, Inc., not Sholom Shaller
Family East Campus. (Def.’s Supp. Mem. (Docket No. 8) at 1 n.1.)
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profanity on the mane of the plaintiff . . . .” (Id.) Alexis contends that he overheard Ms.
Hickman say, “[w]ho this black guy thought he is? Did he have these things where he
came from?” (Id.) According to Alexis, Ms. Hickman had never accused others of not
charting correctly even when those individuals did not chart correctly. (Id.)
Alexis further asserts that in February and March 2020, other employees or residents
falsely accused him of several incidents of misconduct. (Id. ¶¶ 12-14.) On one occasion,
a resident ostensibly complained about the conduct of a “Black aid” but when Alexis’s
supervisor asked Alexis not to enter that resident’s room, Alexis informed her that he had
not worked on the night of the alleged misconduct. (Id. ¶ 12.) Alexis attributes these
accusations to “being targeted, retaliate because of the plaintiff critics about the defendant
(Sholom) unprofessional administrative manners.” (Id. ¶ 13.)
On May 8, 2020, Alexis’s supervisor “convoked the plaintiff to receive an employee
corrective action form” about these allegedly false complaints. (Id. ¶ 14.) Alexis disputed
the charges in the corrective action form and apparently Sholom ultimately required Alexis
to attend an additional training class but did not otherwise discipline him. (Id.) In June
2020, a resident accused Alexis of assault, and Alexis was put on paid administrative leave
for a number of days. (Id. ¶ 16.) After an investigation, Sholom found no foundation for
the assault allegation and Alexis returned to work. (Id.) He believed that the investigation
and administrative leave were retaliation, harassment, and discrimination. (Id.)
In late September 2020, Alexis alleges that he was scheduled to work but was “taken
off the schedule without any notice, or prealable instruction.” (Id. ¶ 17.) Three days later,
another employee called Alexis at home to ask him about contacts with a Covid-positive
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resident. (Id. ¶ 18.) When Alexis informed her that he had not worked at the facility on
the night in question, she “abruptly ends up the phone call.” (Id.)
On October 1, 2020, Alexis received a letter from Sholom dated September 18,
2020, regarding required Covid testing. (Id. ¶ 19.) Although the Complaint is less than
clear on this point, it appears that in this letter Sholom notified its nursing staff of the new
federal requirement that all skilled nursing staff at nursing-home facilities be tested
regularly for Covid. (Louwagie Decl. (Docket No. 11) Ex. B.) Alexis also appears to claim
that he was not paid sufficiently for some of his hours but he did not accept Sholom’s
attempt to reimburse him for some back pay after his termination, believing that it was
Sholom’s attempt to cover up its discriminatory practices. (Compl. ¶ 19.) According to
Sholom, the back-pay payment was increased pay due to the Covid-19 pandemic.
(Louwagie Decl. Ex. C.)
On October 30, 2020, Alexis received another letter terminating his employment for
failure to comply with the mandated Covid-19 testing protocols. (Compl. ¶ 20; see also
Louwagie Decl. Ex. D.) According to Alexis, these letters show that he was being
discriminated against and harassed “because of [his] color, race, and national origin.”
(Compl. ¶ 20.)
Alexis filed a charge of discrimination with the EEOC. The charge itself is not in
the record. The EEOC dismissed the charge and sent Alexis a notice of right to sue dated
June 9, 2021.
(Compl. Ex. 1.)
This lawsuit followed.
The Complaint asserts
discrimination under Title VII on the basis of race, color, and national origin, as well as
“Coercion Harrassement [sic] and intimidation.” (Compl. ¶ 3.e.)
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To survive a motion to dismiss under Rule 12(b)(6), a complaint need only “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 Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)); see also Fed. R. Civ. P. 12(b)(6). A claim bears facial
plausibility when it allows the Court “to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When evaluating a motion
to dismiss under Rule 12(b)(6), the Court must accept plausible factual allegations as true.
Gomez v. Wells Fargo Bank, N.A., 676 F.3d 655, 660 (8th Cir. 2012).
To prevail on his claim that he was discriminated against on the basis of race, color,
or national origin, Alexis must establish that he “(1) is a member of a protected group;
(2) was meeting the legitimate expectations of the employer; (3) suffered an adverse
employment action; and (4) suffered under circumstances permitting an inference of
discrimination.” Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 903 (8th Cir.
2015) (quotation omitted). While “a plaintiff need not plead facts establishing a prima
facie case of discrimination under McDonnell Douglas in order to defeat a motion to
dismiss,” mere “conclusory allegations of . . . discrimination” are insufficient and a
pleading asserting only bare allegations of discrimination should be dismissed. Hager v.
Arkansas Dep’t of Health, 735 F.3d 1009, 1014, 1015 (8th Cir. 2013). Moreover, because
a Complaint must provide sufficient facts to establish a “plausibl[e] . . . entitlement to
relief,” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), the elements of a prima facie case are
“part of the background against which a plausibility determination should be made.”
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Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016) (quotation omitted).
Alexis has pled only one potential adverse employment action: his termination in
October 2020. As Sholom notes, the other allegedly adverse employment actions—
requiring additional training or placing Alexis on paid administrative leave while it
investigated a resident’s assault allegations—are not adverse employment actions as a
matter of law. See Singletary v. Missouri Dep’t of Corr., 423 F.3d 886, 892 (8th Cir. 2005)
(Plaintiff “did not suffer an adverse employment action by being placed on administrative
leave”). But Alexis has not pled sufficient facts from which a reasonable factfinder could
determine that his termination was in any way connected to his allegations that he was
discriminated against on the basis of race, color, or national origin. See Warmington v.
Bd. of Regents of Univ. of Minn., 455 F. Supp. 3d 871, 882 (D. Minn. 2020) (Tostrud, J.)
(noting that a discrimination plaintiff facing a Rule 12(b)(6) motion must set forth “factual
allegations plausibly showing that the defendant manifested bias relevant to the adverse
Moreover, even accepting Alexis’s facts as true, it is clear from the documents to
which he cites—namely the September 18 and October 30 letters—that he was fired for
refusing to be tested for Covid as federal regulations required. This legitimate reason for
terminating his employment is not a pretext for discrimination—Sholom is required to
abide by federal law. And while Alexis now claims that he never refused to be tested, he
does not dispute that he did not undergo testing as Sholom required in September and
October of 2020, or at the least that he did not inform Sholom that he had been tested as
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Finally, with regard to the discrimination claim, Alexis has not pled that any
similarly situated employee was treated differently than he was with regard to the Covid
testing requirement. He does not claim that white employees were exempt from mandatory
testing or that a white employee who refused to be tested was not fired. He has not set
forth any plausible inference that he was discriminated against.
Similarly, he has not sufficiently stated any claim for harassment or retaliation.
Workplace harassment is actionable if it “affect[s] a term, condition, or privilege of
Singletary, 423 F.3d at 892.
“Hostile work environment
harassment occurs when ‘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.’” Id. (quoting Tademe
v. St. Cloud State Univ., 328 F.3d 982, 991 (8th Cir. 2003)).
The alleged “harassment” of which Alexis complains is not severe enough to alter
the conditions of his employment as a matter of law. Accepting his allegations as true, the
fact that a coworker allegedly reported him for something he did not do and then made an
offensive comment about him, and residents twice accused him of misconduct, at least once
apparently confusing him with another Black employee, does not rise to the level of severe
and pervasive sufficient to give rise to a claim of harassment under Title VII.
A claim of retaliation requires Alexis to establish that he engaged in protected
conduct, and as a result of that protected conduct he suffered an adverse employment
action. Eliserio v. United Steelworkers of Am. Local 310, 398 F.3d 1071, 1078-79 (8th
Cir. 2005). Alexis contends that his response to Ms. Hickman’s accusations constitutes
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engaging in protected conduct. 2 He also asserts that he called out his coworkers and
residents for their racist conduct on several occasions, including in an October 14, 2020,
email. (Alexis Decl. (Docket No. 16) Ex. 12.) But even if these actions could be
considered protected conduct, which is doubtful, they are not causally connected to the
only actionable adverse employment action here: Alexis’s termination. His complaints
regarding Ms. Hickman’s comments were made in August 2019, more than a year before
his termination. And although his October 2020 email was close in time to his termination,
Sholom’s undisputed justification for terminating Alexis—his failure to undergo federally
required Covid tests—demonstrates that there is no causal connection between any
protected conduct and his termination.
Accordingly, IT IS HEREBY ORDERED that the Motion to Dismiss (Docket No.
6) is GRANTED and the Complaint is DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: Wednesday, November 17, 2021
s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge
The email Alexis sent in response to his interaction with Ms. Hickman did not mention
any racial comments but discussed only the accusations regarding charting errors. (Alexis
Decl. (Docket No. 16) Ex. 1.)
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