# Rios v. Westport Linen Services, LLC

> District Court, E.D. Louisiana · September 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10184887

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** September 30, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10184887

## How later opinions describe it (automated extraction)

- finding substantial evidence of constructive discharge because the employer downgraded employee's 11 performance rating, a move “recognized as a first step toward dismissal,” and singled him out for reprimands he reasonably believed were pretextual

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ERICK R. RIOS CIVIL ACTION

VERSUS NO. 19-07992

WESTPORT LINEN SERVICES, SECTION: “KWR”
LLC

ORDER AND REASONS

Before the Court is Defendant’s Motion to Dismiss Plaintiff’s First Amended
Complaint Pursuant to Rule 12(b)(6) (R. Doc. 14) filed by the Defendant, Westport Linen
Services, LLC (“Westport”), seeking dismissal of Plaintiff’s lawsuit in its entirety, as the
allegations set forth in the First Amended Complaint fail to state a viable claim or cause of action
against Defendant Westport upon which relief may be granted. Plaintiff Erick Rios (“Rios”)
opposes the motion. R. Doc. 15. The Court heard this motion on the briefs.
I. Factual Background
A. Original Complaint
On February 22, 2019, Rios filed this pro se employment discrimination complaint against
Westport in the State of Louisiana Civil District Court for the Parish of New Orleans. R. Doc. 1-
5, p. 3. On April 3, 2019, the action was removed to the United States District Court invoking the
Court’s federal question jurisdiction. R. Doc. 1. Rios alleges that, on March 7, 2018 he was denied
promotion to the position of maintenance chief because he is of Hispanic/Latino origin.
Specifically, on March 16, 2018, Rios expressed an interest in a maintenance lead position, which
he was denied purportedly due to his several tardy violations. R. Doc. 1-5, p. 6. As a result, of the
denied promotion, Rios resigned from his job on May 17, 2018, which he contends constitutes
constructive discharge. R. Doc. 1-5, p. 7-8.
B. Charge of Discrimination
On September 10, 2018, Rios filed a Charge of Discrimination with the Louisiana
Commission on Human Rights and the EEOC complaining that he was discriminated based upon
his race. R. Doc. 1-5, p. 14. He neither specifically alleged harassment nor constructive
termination. Id. He does, however, complain that in June 2017, despite his applying and

interviewing for Maintenance Lead, he began working as a Maintenance Technician and
throughout the entirety of his employment with Westport his manager, Paul Spitzer (“Spitzer”),
refused to allow him to apply for promotions to the supervisory positions of Maintenance Lead
and Maintenance Chief. Id. As for the discriminatory actions, Rios complains that his manager
Spitzer tolerated and even condoned tardiness from Caucasian employees, such as his supervisor
Jeremy Frye (“Frye”), by still considering Frye for the position of Maintenance Chief despite
Spitzer’s refusal to consider him due to his tardy violations, the very same reason. Id.
C. First Amended Complaint
On July 25, 2019, Rios filed a First Amended Complaint and largely recalled the facts
setting forth the reasons for his constructive discharge. R. Doc. 13. He also alleges that when he

was hired, the Defendant hired workers through contracting agencies rather than traditional job
postings. R. Doc. 13, ¶ 15. He complained that his boss Frye was hired without relevant experience
or education. R. Doc. 13, ¶ 20. Rios contends that despite his training and experience that his
manager Spitzer assigned him to the low skilled position of linen dryer/sheet puller work rather
than maintenance work which was assigned to Frye. R. Doc. 13, ¶ 22. Rios complains that he was
hired as a maintenance technician but assigned to linen work. R. Doc. 13, ¶ 17. He complains while
his supervisor Frye recommended that Rios be designated as employee of the month that on the

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day of the recognition, Rios complains that Spitzer derisively and mockingly called out Rios’s
name when the plaque actually had someone else’s name on it, and then Spitzer smirked and
walked off. R. Doc. 13, ¶ 29.
Rios also alleges that the Defendants created a hostile work environment and implemented
racially selective and improper disciplinary scheme that targeted minority workers and resulted in

the denial of promotions and pay raises. R. Doc. 13, ¶¶ 32-34. Specifically, he alleges that after
close to one year of working for the company that he had enough experience to rise to the position
of Chief of Maintenance, which had been vacant since August 2017. Despite his expression of
interest in being promoted to the position and inquiry with the plant manager via text message,
Westport ultimately advised Rios that it was not seeking to fill the position. R. Doc. 13, ¶36. Rios
alleges that he was denied this promotion to a position that ceased to exist as of July 21, 2017
because of his Hispanic/Latino origin. R. Doc. 13, ¶38.
At some point prior, Rios had also believed, due to his qualifications, he could be promoted
to Maintenance Lead and inquired about whether there was anything he could do to advance a
promotion. Id. Westport also rejected this promotion request citing to his excessive tardy

violations. Id. Thereafter, he started showing up to work on time, followed company polices, and
inquired as to the length of time required to elapse before he would be reconsidered for promotion.
Id. Still, he was overlooked.
Rios complains of disparate impact because Frye, his Caucasian supervisor, was also
frequently tardy but still considered for promotion. R. Doc. 13, ¶¶ 39-41. Rios further alleges after
repeated denials that he sought other employment because of the fear of retaliation and
consequently suffered emotional distress, humiliation, embarrassment, stress, anxiety, and low

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self-esteem. R. Doc. 13, ¶43. On May 9, 2018, Rios lodged an official complaint with Westport’s
Human Resources Department about management’s discriminatory practice who, after reviewing
his complaint, found no discrimination. R. Doc. 13, ¶46. On May 17, 2018, Rios tendered his
resignation from his position as Maintenance Technician after receiving additional workplace
violations for tardiness. R. Doc. 13, ¶47.

In addition to the Title VII claims, Rios complaint seeks relief pursuant to 42 U.S.C § 1981
for the alleged race-based discrimination and retaliation which he experienced. R. Doc. 13, ¶¶52-
55. Relying on the same facts, he seeks lost earnings, past and future, emotional distress and other
equitable and compensatory damages allowed. R. Doc. 13, ¶57. Rios also seeks an award of
punitive damages including front and back pay equitable relief, liquidated damages and attorney’s
fees, costs and interest. Id.
Westport contends that Rios’s claim fails to plead facts sufficient to establish two essential
elements of his failure to promote discrimination claim; namely that (1) Rios has not alleged that
he was qualified for the position he sought and (2) Rios has not alleged that after Rios was denied
promotion, the positions remained open and Westport sought applicants for these positions. R.

Doc. 14-1, p. 2. Westport further contends that Rios’s claim fails to plead facts sufficient to
establish the essential elements of his constructive discharge claim by failing to allege that
Westport deliberately made his working conditions so intolerable that a reasonable person in his
position would be forced to an involuntary resignation. Id. More specifically, Westport contends
that Rios’s complaint makes clear that he prematurely, and without justification, quit his job with
Westport. Id.

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Rios contends that he has adequately pled his causes of action and that the Defendant’s
motion should be denied. R. Doc. 15, p. 2. Rios contends that he exhausted his Title VII claims
and that no administrative remedy procedure exists for his § 1981. R. Doc. 15, p. 3. Rios reasserts
that he was subjected to reassignment to menial work compared to Caucasian employees who were
not required to the same. R. Doc. 15, p. 5. He alleges that he was subject to harassment and forced

to resign. R. Doc. 15, p. 6.
II. Standards of Review
A. 12(b)(6) 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.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662 (2009); see also Cuvillier v. Taylor,
503 F.3d 397, 401 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 555-56 (“. . . a Rule 12(b)(6)
motion to dismiss. . . must provide the plaintiff's grounds for entitlement to relief-including factual
allegations that when assumed to be true ‘raise a right to relief above the speculative level’”)).
Further, the court is not to evaluate the plaintiff's likelihood of success,” but rather, “to determine

whether the plaintiff has stated a legally cognizable claim that is plausible.” Lone Star Fund V(US)
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.2010) (citing Iqbal, 556 U.S. 662).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” Iqbal, 556
U.S. at 678-79 (citing Fed. R. Civ. P. 8). “In addressing a motion to dismiss for failure to state a
claim, the court must accept as true all well-pleaded facts in the complaint and view those facts in

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the light most favorable to the plaintiff.” See In re Katrina Canal Breaches Litigation, 495 F.3d
191, 205 (5th Cir. 2007).
While a complaint must contain something more than a general recitation of the elements
of the claim, there is a minimal pleading standard for simple claims of race and sex discrimination.
See E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773 (7th Cir. 2007). “The type of facts

that must be alleged depend upon the legal contours of the claim.” Id. at 782. To determine whether
a complaint meets this standard the “reviewing court [must] draw on its judicial experience and
common sense.” Davis v. Metro. Pier & Exposition Auth., No. 11 C 9018, 2012 WL 2576356, at
*5 (N.D. Ill. July 3, 2012) (citing Iqbal, 556 U.S. at 678). “For Title VII claims to survive a motion
to dismiss there are “two easy clear hurdles. . .: First, the complaint must describe the claim in
sufficient detail to give the defendant fair notice of what the claim is and the grounds upon which
it rests. Second, the allegations must plausibly suggest that the plaintiff has a right to relief, raising
the possibility above the speculative level.” Id. at *7 (citing Concentra, 496 F.3d 773) (discussing
minimal pleading standards in race and sex discrimination cases).
III. Analysis

A. Racial Discrimination in Failure to Promote
In order to establish a prima facie case of discrimination for failure to promote Rios must
allege: “(1) is a member of a protected class; (2) that [s]he applied and was qualified for a job for
which the employer was seeking applicants; (3) that, despite [her] qualifications, [she] was
rejected; and (4) that, after [her] rejection, the position remained open and the employer continued
to seek applicants from persons of plaintiff's qualifications.” Haley v. Hosp. Serv. Dist. of W.
Feliciana Par., 321 F. Supp. 3d 670, 675 (M.D. La. 2018) (citing Sharkey v. Dixie Elec.

6
Membership Corp., 262 F. App'x 598, 601 (5th Cir. 2008)). Westport contends that Rios does not
include in neither his Original nor First Amended Complaint prongs two and four as Rios neither
complains that he was qualified for a position for which the Westport was seeking applicants and
that after Rios’s rejection that the position remained open and Westport continued to seek
applicants from persons of Rios’s qualifications.

i. Rios’s Qualifications for the Positions
First, Westport contends that Rios fails to sufficiently plead racial discrimination, in that
he fails to allege that he was passed over for a position or promotion he was qualified for due to
his race or national origin. Specifically, Westport contends that while Rios complains that he was
more experienced than Frye, he never alleges that he was qualified to be promoted to the position
of Maintenance Chief. R. Doc. 14-1, p. 5.
In reviewing the allegations set forth, Rios generally alleges that he is of Hispanic/Latino
origin, hired in the maintenance department but assigned to linen, and denied promotion
opportunities due to previous tardy violations. As to his qualifications, Rios complains that he was
discriminated on the basis of race for a job, which “he felt he was more qualified.” R. Docs. 1-5 &

15. Rios further contends that management, specifically Frye, knew he was qualified for more
responsibility and assignments than linen/dryer sheets (R. Doc. 13, ¶28) and, that by March 7,
2018, he “felt he had gained enough experience at Westport to rise to the position” (R. Doc. 13,
¶35). Later, in that same allegation. However, plaintiff Rios clarifies that “being more than
qualified” he decided to inquire about his possible application to these positions. Id. Nevertheless,
in the amended complaint, Rios concedes that when he did attempt to seek promotion to the

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Maintenance Chief position that Spitzer informed him that very day that, as of July 2017, the job
no longer existed. R. Doc. 13, ¶¶35 & 36.
While in the original complaint Rios clearly pled that he “felt that he was qualified” (R.
Doc.1-5, ¶V), in the First Amended Complaint, Rios more clearly alleges that he was “more
qualified” than Jeremy Frye his Caucasian supervisor who had at that moment held the position of

Maintenance Lead (R. Doc. 13, ¶35). Despite the fact that Rios alleges Westport was grooming
Frye, Rios’s Caucasian supervisor, for the position of Maintenance Chief even though Frye was
less qualified and periodically tardy, Rios acknowledges that Frye quit his employment with
Westport at the position of Maintenance Lead and never acquired the position of Maintenance
Chief.
Having reviewed the pleadings filed by Rios, the Court finds that his complaint does not
state a claim for racial discrimination for failure to promote because Rios fails to sufficiently allege
the existence of a position for which he could have been qualified. By acknowledging that Frye,
while perhaps intended for the position, left the company before ascending to the position of
Maintenance Chief, Rios fails to allege someone was eventually hired as Maintenance Chief. Rios

also does not allege that someone eventually filled Frye’s vacant Maintenance Lead position. As
Rios does not adequately allege there is such position of Maintenance Chief or Maintenance Lead
at Westport, the Court cannot find he adequately alleged he was so qualified for those positions.
ii. Availability of the Positions
Next Westport alleges that Rios has not sufficiently plead racial discrimination in failure
to promote where Rios fails to allege that Westport ever accepted applications for the Maintenance
Chief or Maintenance Lead positions. Specifically, Westport contends that Rios took it upon

8
himself to apply for the positions under the erroneous belief that they were open and available, but
in reality, and as he was informed upon Westport’s receipt of his interest statement, Maintenance
Chief position no longer existed. R. Doc. 14-1, p. 5. Westport contends that Rios complaint fails
to state a claim because there is no allegation that Westport sought or accepted other applicants or
that they ever hired anyone for either job.

Rios contends that he was rejected from promotion for both the Maintenance Chief and
Maintenance Lead positions even though he had gained seniority in his position as Maintenance
Technician. R. Doc. 15, p. 4. Rios further alleges that he was initially hired as a Maintenance
Technician, but then he was immediately assigned to degrading work of Linen Dryer or Sheet
Puller, a job for which he did not apply. R. Doc. 15, p. 5. Rios rebukes that he subjectively believes
that both positions are needed in every plant facility and avers that the Defendant was in the process
of accepting applications for these positions at the time he applied for the positions. R. Doc. 15, p.
4-5.
In the original complaint, Rios alleges that while Westport had already preselected Frye
for the position of Maintenance Chief that Rios still decided to inquire about his potential

application to the position via text message to Spitzer. R. Doc. 1-5, ¶ V. According to Rios, the
company notified him that very day of its elimination of the position nearly a year prior. Id. Rios
acknowledges that the company never actually promoted Frye to Maintenance Chief but instead
he worked in the position Maintenance Lead until his eventual resignation. Id. Rios never alleges
that the Chief Maintenance position was ever filled.
Furthermore, while Rios does not dispute the tardy violations, Rios complains that when
Frye resigned from the position of Maintenance Lead, Westport refused to promote Rios due to

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his previous tardy violations, which he claims was not factored against Caucasian employees. Id.
He further alleges that he learned about Frye’s qualifications for Maintenance Lead after he gained
access to Frye’s employee file and saw that Frye’s multiple write-ups due to unexcused absences,
and even a previous termination by the company due to job abandonment in May 2016. R. Doc.
1-5, ¶ VII.

In the First Amended Complaint, Rios modifies his allegations to allege that not only was
Frye promoted to Maintenance Lead, but he was also later promoted to Maintenance Chief, despite
Frye’s lack of qualifications and presence of multiple workplace violations and previous
termination. R. Doc. 15 (citing R. Doc. 13, ¶¶ 39-41). He also alleges that he is of the belief that
Westport was still in need of a Maintenance Chief and Maintenance Lead position at every plant
and that they were looking to fill both positions throughout his short remainder of employment
with Westport. R. Doc. 15, p. 5.
The Court finds that Rios has pled allegations, which accepted as true, that do not raise his
right to relief above a speculative level. A review of the Rios’ pleadings shows that he was a
Mechanical Technician and Frye was a Mechanical Lead. Frye, according to Rios, was his

immediate supervisor who he subjectively believed was less qualified than him. Rios has not pled
that Frye held the same or similar responsibilities, shared the same supervisor, or that the ultimate
decision maker regarding their employment status was the same. The Court is of the opinion that
Rios neither sufficiently pleads that he was qualified for the positions of issue nor that after his
“rejection”, the position remained open and his employer, Westport, continued to seek applicants
from persons of his qualifications. Haley, 321 F. Supp. 3d at 675. As such, the Court, after
reviewing the pleading in the instant matter, finds that the allegations of Rios, accepted as true, do

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not raise the right to relief above a speculative level. See Lormand v. US Unwired, Inc., 565 F.3d
228, 257 (5th Cir. 2009). As a result, the Court finds that Defendant Westport’s motion to dismiss
Rios’s Title VII claim of race-based discrimination for failure to promote must be granted.
B. Constructive Discharge Claim
Westport contends that Rios quite his job on May 3, 2018, because he was denied two

opportunities at promotion—Maintenance Chief and Maintenance Lead. R. Doc. 14-1, p.7.
Nonetheless, according to Westport, Rios complaint fails to allege that his employer, Westport
made his working conditions so intolerable that a reasonable person would have felt compelled to
resign. R. Doc. 14-1, p. 6.
A constructive discharge occurs when an employer makes working conditions so
intolerable that a reasonable employee would feel compelled to resign. See Jurgens v. E.E.O.C.,
903 F.2d 386, 388 (5th Cir. 1990). The inquiry focuses on how events leading up to the plaintiff's
resignation would affect a reasonable employee's state of mind; “the employer's intent in creating
the allegedly intolerable conditions is irrelevant at this stage.” Guthrie v. J.C. Penney Co., Inc.,
803 F.2d 202, 207 (5th Cir.1986). However, how a reasonable employee would interpret the

employer's intent behind the actions precipitating the resignation can be decisive. See, e.g., Brown
v. Bunge Corp 207 F.3d 776, 782 (5th Cir.2000) (no constructive discharge without any objective
indication that supervisor's demands for better performance were calculated to encourage the
employee to resign); see also Stephens v. C.I.T. Group/Equip. Financing, 955 F.2d 1023, 1028
(5th Cir.1992) (substantial evidence of constructive discharge where employee “reasonably could
have believed that his demotion was a harbinger of dismissal”); Guthrie, 803 F.2d at 207 (finding
substantial evidence of constructive discharge because the employer downgraded employee's

11
performance rating, a move “recognized as a first step toward dismissal,” and singled him out for
reprimands he reasonably believed were pretextual).
Courts consider a number of factors when deciding whether an employee's working
conditions were so intolerable that a reasonable person would have felt compelled to resign.
Brown, 207 F.3d at 783. Employers can constructively discharge an employee by:

(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4)
reassignment to menial or degrading work; (5) reassignment to work under a
younger person; (6) badgering, harassment, or humiliation by the employer
calculated to encourage the employee's resignation; or (7) offers of early retirement
that would make the employee worse off whether the offer were accepted or not.

Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 481 (5th Cir. 2008).
The Fifth Circuit found “no support in the case law for the proposition that a simple
discriminatory denial of promotion that cannot be reasonably construed as a career-ending action
can alone create such embarrassment or humiliation that the denial comprises a constructive
discharge.” Jurgens, 903 F.2d at 392. To support a finding of constructive discharge based upon
the employer's past discrimination in promotions, there must be ‘additional ‘aggravating factors.’”
Id. at 393. “Aggravating factors include hostile working conditions and any other evidence
suggesting any invidious intent on the part of the employer in creating or perpetuating the
intolerable conditions compelling retirement or resignation.” McKnight v. Automatic Coin Enter.,
No. CIV. A. 96-3111, 1997 WL 79447, at *4 (E.D. La. Feb. 21, 1997).
Put pointedly, Rios fails to explain how Westport’s overlooking him for two promotions
resulted in constructive discharge. While Rios alleges in the First Amended Complaint that he was
used to train two Caucasian technicians, perform technician work, and open and close the facility,
Rios likewise acknowledges that it was only after he was informed he would not receive the Chief

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or Lead Maintenance promotions that he began looking for other employment. He makes no
mention of how this, alone, constitutes intolerable working conditions.
In this case, Rios simply alleges that he began looking for another job because he was
denied his other to attempts at getting promoted. He does not allege that he experienced a reduction
in salary or offered early retirement. R. Doc. 13, ¶ 44. Moreover, while Rios alleges he was told

to quit if he did not like his job assignment, he also alleges, in contrast, that, because he worked
hard, Westport eventually promoted him to Mechanic Technician and he was given more job
responsibilities such as his training Caucasian employees and making purchases on behalf of the
company. R. Doc. 13, ¶ 42. In fact, Rios alleges that he had previously submitted his two-week’s
notice for resignation but instead opted to stay employed with Defendant Westport after Westport
offered him and additional six (6) dollars an hour pay wage. R. Doc. 13, ¶ 26. While he earlier
indicated that he was assigned to linen, he did not sustain a reduction in pay and at some point, by
his own admission, resumed technician repair work. The Court, here, notes that his initial
assignment in this context is not analogous to a reassignment of work duties.
In addition, while he claims in the First Amended Complaint that he worked in a hostile

environment due to a selectively racial disciplinary scheme because he is Hispanic, he does not
explain further the contours of the alleged scheme other than too say that he observed other persons
of minority descent received tardy violations. Instead, Rios alleges that his Caucasian supervisor,
Jeremy Frye, was not subjected to the company’s tardy policy. Here the Court feels it important to
note that Plaintiff Rios implicitly concedes that Frye was subject to Westport’s tardy policy where
Rios alleges that Frye had previously been demoted and suffered disciplinary—up to and including
termination for job abandonment—in May of 2016 for his multiple write-ups and unexcused

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absences. R. Doc. 13, 4] 14. The fact that Frye, Rios Caucasian supervisor had such write-ups itself
is indicative that the disciplinary policy was in effect for members of the Caucasian race as well
as those of minority descent. Plus, the Court can see nowhere in Rios’s allegations complaint of
this non-preferential treatment in Westport’s application of their disciplinary polices amounting to
intolerable working conditions.
As such, the Court does not find that Plaintiff Rios has sufficiently plead aggravating
factors, beyond mere perceived harassment, which would give rise to a claim of constructive
discharge. As a result, the Court finds that Defendant Westport’s motion to dismiss Rios’s Title
VII claims of race-based discrimination resulting in constructive discharge must be granted.
IV. Conclusion
Accordingly,
IT IS ORDERED that the Defendant’s Motion to Dismiss Plaintiff’s First Amended
Complaint Pursuant to Rule 12(b)(6) (R. Doc. 14) is GRANTED insofar as Rios’s Title VII
claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Rios’s § 1981 claim, not the subject of this motion,
remains and shall proceed forward.

New Heed this 26th day of September 2019.

KAREN WELLS x
CHIEF UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10184887. Public record. Not legal advice.