King v. United Parcel Service, Inc ("UPS")

SUONUITTEHDE RSTNA DTIESTS RDIICSTTR OIFC TF LCOORUIRDTA

CASE NO. 22-CV-61140-RAR

DEMETRIC KING,

Plaintiff,

v.

UNITED PARCEL SERVICE,

INC. (“UPS”),

Defendant.

________________________________/

ORDER GRANTING IN PART MOTION TO DISMISS

THIS CAUSE comes before the Court upon Defendant’s Motion to Dismiss Plaintiff’s

Amended Complaint (“Motion”), [ECF No. 12], filed on October 11, 2022.1 Having considered

Defendant’s Motion, the record, and being otherwise fully advised, it is hereby

ORDERED AND ADJUDGED that the Motion, [ECF No. 12], is GRANTED IN PART

for the reasons stated herein.

BACKGROUND

Plaintiff Demetric King is a black employee of Defendant United Parcel Service, Inc.

(“UPS”). See First Am. Compl. (“Amended Complaint”), [ECF No. 11] ¶ 7. King began working

for UPS in April 2014 and, until about October 2018, worked “in the dual capacities of

Preload/Temporary Cover Driver.” Am. Compl. ¶ 10. In September 2018, King’s supervisor John

Lieberman “began to denigrate [King] by referring to him as ‘garbage can boy,’” a term he

allegedly intended as a racial epithet. See Am. Compl. ¶¶ 11–12. Shortly after Lieberman began

referring to King as “garbage can boy,” King made complaints to Lieberman, UPS’s human

1 The Motion is fully briefed and ripe for adjudication. See Pl.’s Resp. to Def.’s Mot. to Dismiss

(“Response”), [ECF No. 13]; Def. United Parcel Service, Inc.’s Reply Brief in Supp. of Its Mot. to Dismiss

resources department, and an “[e]thics [h]otline” UPS maintains. Am. Compl. ¶¶ 13–14.

Lieberman was undeterred, and despite the fact King “explained . . . why Lieberman’s racially

charged language was offensive,” UPS did not take remedial action against Lieberman. See id.

King was then “temporarily forced to leave the Temporary Cover Driver position” because

Lieberman’s actions created a hostile work environment. Am. Compl. ¶¶ 10, 15.

King filed a complaint with the Equal Employment Opportunity Commission (“EEOC”)

on October 11, 2018, alleging he was discriminated against because of his race. Am. Compl. ¶ 5.

King eventually received a Dismissal and Notice of Rights (“Right to Sue Letter”) dated August

19, 2020, but he alleges he did not receive it until March 23, 2022. Am. Compl. ¶ 5.2 King then

filed suit on June 16, 2022.

LEGAL STANDARD

“To survive a motion to dismiss, a 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When

evaluating a Rule 12(b)(6) motion to dismiss, the court must accept all well-pleaded factual

allegations as true and draw all inferences in favor of the plaintiff. Smith v. United States, 873

F.3d 1348, 1351 (11th Cir. 2017). Although the court is required to accept all allegations contained

in the complaint as true, courts “are not bound to accept as true a legal conclusion couched as a

factual allegation.” Iqbal, 556 U.S. at 678; (quoting Twombly, 550 U.S. at 555). Courts liberally

construe complaints filed by pro se litigants. See Bingham v. Thomas, 654 F.3d 1171, 1175 (11th

Cir. 2011). A court, however, may not “act as de facto counsel or rewrite an otherwise deficient

pleading to sustain an action.” Bilal v. Geo Care, LLC, 981 F.3d 903, 911 (11th Cir. 2020).

2 While the Amended Complaint states King first received the Right to Sue Letter on March 29, 2022, King

ANALYSIS

I. Timeliness

UPS argues this action is untimely because King’s Right to Sue Letter was issued on

August 19, 2020. Mot. at 3–6. While King will ultimately have to prove this action is timely,

UPS’s argument presents factual issues the Court cannot adjudicate on a motion to dismiss. Title

VII requires a plaintiff to file suit within ninety days after receiving notice of a right to sue letter.

See 42 U.S.C. § 2000e-5(f)(1). This ninety day period generally begins to run after the plaintiff

receives the right to sue letter, not when the letter is mailed. Norris v. Fla. Dep’t of Health &

Rehab. Servs., 730 F.2d 682, 683 (11th Cir. 1984). Indeed, rather than analyze this ninety day rule

rigidly, the Eleventh Circuit requires that courts determine the issue “on a case-by-case basis to

fashion a fair and reasonable rule for the circumstances of each case, one that would require

plaintiffs to assume some minimum responsibility without conditioning a claimant’s right to sue

on fortuitous circumstances or events beyond her control.” Kerr v. McDonald’s Corp., 427 F.3d

947, 952 (11th Cir. 2005) (alterations accepted) (quoting Zillyette v. Capital One Fin. Corp., 179

F.3d 1337, 1340 (11th Cir. 1999)).

The Right to Sue Letter states it was issued on August 19, 2020. See [ECF No. 12-1].3

King, however, claims he and his former counsel first received it on March 23, 2022 after they

filed a FOIA request with the EEOC. See Resp. at 1–4; Am. Comp. ¶ 5. UPS responds by claiming

the Right to Sue Letter was nonetheless uploaded on the date it was issued to an online portal

King’s former counsel could access. Reply at 3–5. UPS also argues the letter was in fact mailed

to King. Id. As evidenced by the fact the parties attach evidence to support their positions, these

are factual disputes that are inappropriate to resolve at the motion to dismiss stage, and the Court

3 The Court may consider the Right to Sue Letter without converting the Motion into a motion for summary

judgment because it is a document central to King’s claim. See Giner v. AllStars Ins. Partners, Inc., No.

will not convert the Motion into a motion for summary judgment and venture beyond the pleadings.

See Jones v. Auto. Ins. Co. of Hartford, Conn., 917 F.2d 1528, 1531–32 (11th Cir. 1990) (“It is

within the judge’s discretion to decide whether to consider matters outside of the pleadings that

are presented to the court.”); Vinson v. Fla. Dep’t of Corr., No. 19-333, 2020 WL 12309502, at *2

(N.D. Fla. May 15, 2020) (denying motion to dismiss where the defendant “raise[d] a factual

dispute as to when the 90-day window began”); cf. Wells v. Brown, 58 F.4th 1347, 1350 (11th Cir.

2023) (noting a court will only dismiss a complaint based on an affirmative defense that appears

on the face of the complaint). Accordingly, the Motion is denied as to this ground and the Court

does not reach the issue of equitable tolling.4

II. Failure to State a Claim

UPS next argues that King has not sufficiently pled a hostile work environment claim.

Mot. at 6–8. The Court agrees the Amended Complaint lacks sufficient factual support for this

claim. A plaintiff asserting a hostile work environment claim under Title VII must demonstrate

that (1) the plaintiff is a member of a protected group; (2) the plaintiff endured unwelcome

harassment; (3) the harassment was based on the plaintiff’s protected characteristic; (4) the

harassment “was sufficiently severe or pervasive to alter the terms and conditions of employment

and create a discriminatorily abusive working environment”; and (5) there is a basis for holding

the employer responsible. See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.

2002). Courts must remain cognizant that Title VII does not operate as a “general civility code.”

See Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 809 (11th Cir. 2010) (quoting

4 UPS is correct that where a plaintiff cannot prove the date on which a right to sue letter was received

there is a presumption it was received three days after mailing. See, e.g., Winsor v. Home Depot U.S.A,

Inc., 743 F. App’x 335, 337 (11th Cir. 2018). But applying this presumption would be premature at the

motion to dismiss stage since King’s allegation about when he received the letter is taken as true. See id.

(applying the three day presumption where the plaintiff “failed to allege in the complaint when he received

the letter”).

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). A workplace is only hostile where it

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) (citations and internal quotation

marks omitted).

UPS argues King has not pled harassment that was sufficiently severe or pervasive.5 This

element contains both an objective and a subjective component. Adams v. Austal, U.S.A., L.L.C.,

754 F.3d 1240, 1249 (11th Cir. 2014). To satisfy the objective component, “the racial slurs

allegedly spoken by co-workers had to be so ‘commonplace, overt and denigrating that they

created an atmosphere charged with racial hostility.’” See Edwards v. Wallace Cmty. Coll., 49

F.3d 1517, 1521 (11th Cir. 1995) (quoting EEOC v. Beverage Canners, Inc., 897 F.2d 1067, 1068

(11th Cir. 1990)). Courts consider the frequency and severity of the conduct, whether the conduct

was “physically threatening or humiliating, or a mere offensive utterance,” and whether the

conduct unreasonably interfered with an employee’s work performance to determine whether a

workplace was hostile. See Allen v. Tyson Foods, Inc., 121 F.3d 642, 647 (11th Cir. 1997) (quoting

Harris, 510 U.S. at 23).

The Amended Complaint does not contain sufficient factual support to infer the requisite

severity or pervasiveness. Because King alleges he had to leave one of his positions, the Court

will assume the comments interfered with King’s work performance to some degree. The

remaining factors, however, make clear the alleged conduct was neither severe nor pervasive.

5 In passing, UPS also appears to argue King has not sufficiently pled there is a basis for holding UPS

liable. Mot. at 7. UPS has cited no authority and therefore not adequately presented this argument. Cf.

Christmas v. Harris Cnty., Ga., 51 F.4th 1348, 1354 n.4 (11th Cir. 2022) (noting that a party must make

more than a passing reference to an issue in a brief). If UPS had made this argument, the Court would

reject it. King alleges Lieberman is his supervisor, and “[a]n employer is vicariously liable to an employee

for a hostile work environment created by a supervisor.” Swindle v. Jefferson Cnty. Comm’n, 593 F. App’x

919, 923 (11th Cir. 2014). The Court is satisfied King has pled this basis for liability, particularly given

While the Amended Complaint alleges Lieberman’s conduct began in September of 2018, it is

devoid of any allegations as to how frequent the comments were. And while King alleges the term

“garbage can boy” was racially derogatory, courts have held more offensive remarks insufficiently

severe. See, e.g., Alhallag v. Radha Soami Trading, LLC, 484 F. App’x 293, 296 (11th Cir. 2012)

(affirming dismissal of a claim where the plaintiff was called “dirty” and told that she should “go

to Hell” and “burn in Hell”); Thompson v. City of Miami Beach, Fla., 990 F. Supp. 2d 1335, 1340

(S.D. Fla. 2014) (dismissing claim where plaintiff was subjected to three racial slurs). Finally,

there is no allegation that the conduct was physically threatening. Therefore, King has failed to

allege a plausible hostile work environment claim. The Court will afford King one opportunity to

amend his complaint. Woldeab v. Dekalb Cnty. Bd. of Educ., 885 F.3d 1289, 1291 (11th Cir. 2018)

(stating a court should afford pro se plaintiffs an opportunity to amend when a “more carefully

drafted complaint might state a claim” (citation omitted)).

CONCLUSION

For the foregoing reasons, it is hereby

ORDERED AND ADJUDGED that the Motion, [ECF No. 12], is GRANTED IN PART.

The Amended Complaint, [ECF No. 11], is DISMISSED without prejudice with leave to amend.

Plaintiff shall file a Second Amended Complaint on or before May 8, 2023. Failure to file a

Second Amended Complaint on or before May 8, 2023, will result in the dismissal of this action

without further notice. See FED. R. Civ. P. 41 (stating a court may dismiss an action when a

plaintiff fails to prosecute the case or comply with a court order)

DONE AND ORDERED in Miami, Florida, this 6th day of April, 2023.

UNITED STATES DISTRICT JUDGE

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