Harrison v. U.S. Department of Homeland Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DAVID HARRISON CIVIL ACTION

VERSUS NO: 21-161

ALEJANDRO MAYORKAS, SECRETARY, SECTION: “KWR”

THE UNITED STATED DEPARTMENT OF

HOMELAND SECURITY

ORDER AND REASONS

Before the Court is a Motion to Dismiss (R. Doc. 7) filed by the Defendant, Alexander

Mayorkas, Secretary of the Department of Homeland Security, seeking an order pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), dismissing Plaintiff David Harrison’s

complaint. Plaintiff Harrison is proceeding pro se. No opposition to this motion was filed. The

motion was set for submission on September 1, 2021 and was heard on the brief. On November 1,

2021, following the consent of the parties, this matter was referred to the undersigned United States

Magistrate Judge in accordance with Title 28 U.S.C. § 636(c). R. Doc. 12.

I. Background

On January 19, 2021, Plaintiff David Harrison (“Harrison”), an African-American male,

filed a complaint alleging various claims of discriminatory conduct stemming from his

employment with the Department of Homeland Security, Transposition Security Administration

Agency at the Louis Armstrong New Orleans International Airport (“TSA-MSY”). R. Doc. 1. He

alleges unlawful race and sex based employment discrimination, retaliation, harassment, and a

hostile work environment in violation of Title VII of the Civil Rights Act (“Title VII”), retaliation

under the Family Medical Leave Act (“FMLA”), and discrimination in violation of 42 U.S.C.

§1983. Id. Harrison is a pro se Plaintiff.

On June 11, 2019, Harrison contends that he was terminated for misuse of a government

credit card and inserting a USB into a TSA-MSY computers. R. Doc. 1 p. 3. His termination was

based on five allegations: (1) Consuming Alcohol on Duty, (2) Misuse of Government Issued

Travel Card, (3) Failure to Follow Policy, (4) Failure to Timely Honor Debt, and (5) Lack of

Candor. Id. Harrison alleges that his termination was the result of a discriminatory and retaliatory

campaign of harassment spearheaded by Brad Meyers, Senior Transportation Security Manager

(“STSM Meyers”) and carried out by Reginald Chesterfield, Transportation Security Manager

(“TSM Chesterfield”). Id. at p. 5. He additionally contends that his termination is just one example

of both Meyers and Chesterfield imposing penalties on African American male employees at a

higher rate than other groups. Id.

The incidents that Harrison alleges in support of his claims begin in May 2018. He submits

that his wife suffers from a chronic illness and he is her primary caregiver, as a result, he was

approved for FMLA leave in 2015. Id. at p. 7. Harrison contends that on May 17, 2018 he was

absent from work due to his wife’s illness. Id. He also contends that he informed his employer of

his absence, but TSM Chesterfield, an African American male in leadership position with TSA-

MSY, recorded Harrison as AWOL. Id. According to Harrison, after this incident TSM

Chesterfield circulated a memo instructing managers to be suspicious of employees claiming to

use FMLA leave. Id. at p. 6.

On May 24, 2018, Harrison contends that he received a Letter of Counseling from TSM

Chesterfield for failure to submit an OPM-71 by the end of his first workday after taking the FMLA

leave. Id. This, according to Harrison, was another act of harassment and discrimination because

common practice at TSA-MSY is to collect these forms before the end of every bi-weekly pay

period. Id.

In response to the above-mentioned events, Harrison filed an EEOC complaint alleging

harassment and discrimination in June 2018. Id. at p. 9. However, he declined to move forward

with the proceedings and attempted to resolve the situation outside of the formal complaint process

in order to create a more positive work relationship. Id.

After filing, but dismissing the EEOC complaint, Harrison was on official travel from

August 27, 2018 to September 1, 2018. Id. at p. 3. During this travel, it is alleged that he misused

the government credit card. Id. Harris contends that on September 15, 2018 he responded to

management officials via emails explaining the charges to the credit card. Id. After submitting his

explanation, he contends that he was notified, on September 19, 2018 that his response was

received, reviewed, and that it had been deemed that the charges in question were a misuse in

accordance with “TSA Travel Card Policy MD 100.5 Section 6.B.1. IBA Travel Card Use.” Id.

On September 21, 2018 Harrison was given a notice that the Pre-Decision process, where TSA

management investigates an allegation before making a discipline decision, in accordance with

TSA policy, would begin. Id.

Subsequently on October 25, 2018, Harrison contends that Chesterfield, asked his direct

supervisor, Senior Transportation Security Officer Dustin Ryks (“STSO Ryks”) to reduce his mid-

year performance appraisal from a score of five (5) Achieved Excellence to a three (3) Achieved

Expectation in the Honesty/Integrity category. Id. at p. 4. He further alleges that these actions were

noted, and concerns were expressed over the actions by Ryks. Id. at p. 5

Harrison next contends that Chesterfield’s harassing behavior continued on November 8,

2018 when he was summoned by Chesterfield to explain his absence from an Intel Briefing. Id. at

p. 11 He alleged that he was absent from the meeting because Chesterfield gave one location for

the meeting, and then changed the location without informing him. Id.

On February 28, 2019, Harrison contends that he again utilized FMLA leave to care for his

wife. Id. at p. 7 He contends that he followed proper procedure when taking the day off and notified

his employer that he was taking the entire day under FMLA. Id. On the same day, according to

Harrison he was placed on overtime leave restriction. As a result of being placed on overtime

restriction, Harrison’s overtime shifts scheduled for March 2, 2019 and March 7, 2019 were

cancelled. Id.

Harrison alleges that being placed on overtime restriction was retaliation for his alleged

misuse of a government credit card. One example given by Harrison was the fact that, shortly

before he was placed on restriction, Designated Grievance Official Greggory Fruge at the National

Resolution Center contacted STSM Meyer, Randell Lundsgar, and Arden Hudson seeking

clarification into the alleged falsifying of documents and mishandling of Harrison’s 2018 Mid-

Year Evaluation. Id. at p. 8 Harrison contends that the management uses the tactic of lowering

evaluation scores to discredit black, male employees and create justification for terminating them.

Id. at p. 10

In March 2019, nearly six (6) months after the alleged misuse of the government credit

card, Harrison alleges that he received a Notice of Proposed Removal. Id. at p. 5. Harrison contends

that TSA directives require a thirty (30) day fact finding period and that this process usually takes

about ninety (90) days. R. Doc. 1 p. 5. Harrison also alleges that on March 6, 2019 after receiving

his notice of proposed removal, he was removed from all screening functions and was to only

perform non-security functions.

After being removed from security functions Harrison alleges that Chesterfield, on two

occasions, publicly asked Harrison if he had worked with the Advance Threat and Local Allocation

Strategy Team (“ATLAS”). Harrison contends that Chesterfield asked these questions in a

condensing tone and laughed or smirked when Harrison told him he was not, per directives given

to him because of the notice of proposed removal. Harrison next alleges that Chesterfield

prohibited him from utilizing the Multi-Purpose Room and Training Room, which are areas open

to all employees, and restricted him to working in a cubical in the corner of the manager’s office.

While working in this cubicle, Harrison alleges that Chesterfield would walk by looking at him in

an intimidating manner. These actions, according to Harrison where harassing, intimidating, and

acts of retaliation that created a hostile work environment.

II. Standard of Review

A plaintiff who brings a claim pro se is entitled to a liberal reading of that complaint.

Payton, 550 F. App’x at 195 (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). “[A] pro se

complaint, ‘however inartfully pleaded,’ must be held to ‘less stringent standards than formal

pleadings drafted by lawyers.’” Payton, 550 F. App’x 194, 195 (citing Estelle v. Gamble, 429 U.S.

97, 106 (1976)). “Nevertheless, the liberal pro se pleading standard still demands compliance with

procedural standards.” Payton, 550 F. App’x at 195 (citing Douglass v. United Services Auto.

Ass’n, 65 F.3d 452, 455 n. 4 (5th Cir.1995)).

Under Rule 12(b)(6), the Court may dismiss a complaint if it lacks jurisdiction over the

subject matter or for failure to state a claim upon which any relief may be granted. See Fed.R.Civ.P.

12(b)(1), (6). The same standard is applied for a motion to dismiss brought under either Rule

12(b)(1) for lack of jurisdiction or under Rule 12(b)(6) for failure to state a claim for which relief

can be granted. Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992).

“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)). The Court must

accept all well-pleaded facts as true, viewing the complaint in the light most favorable to the

plaintiff. In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir. 2010); Guidry v. Am.

Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007).

The Supreme Court, however, has declared that “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678

(internal citation omitted). Moreover, “[f]actual allegations must be enough to raise a right to relief

above the speculative level,” and “[t]he plaintiff must plead enough facts to state a claim to relief

that is plausible on its face.” Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007)

(quotation marks omitted). The United States Supreme Court has explained:

A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged. The plausibility standard is not akin to a “probability

requirement,” but it asks for more than a sheer possibility that a defendant has acted

unlawfully. Where a complaint pleads facts that are merely consistent with a

defendant's liability, it stops short of the line between possibility and plausibility of

entitlement to relief.

Iqbal, 556 U.S. at 678 (citations and quotation marks omitted).

In determining whether a complaint states a claim that is plausible on its face, the Court

“draw[s] on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Thus, as mentioned

above, to avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.”’ Iqbal, 556 U.S. at 678 (quoting Twombly, 550

U.S. at 570). In order for a claim to be plausible at the pleading stage, the complaint need not strike

the reviewing court as probably meritorious, but it must raise “more than a sheer possibility” that

the defendant has violated the law as alleged. See id.

Finally, Rule 12(b)(1) requires dismissal of an action if the Court lacks jurisdiction over

the subject matter of the Plaintiff’s claim. Fed. R. Civ. Pro. 12(b)(1). The Fifth Circuit has held

“[t]he burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.”

Raj v. Louisiana State Univ., 714 F.3d 322, 327 (5th Cir. 2013).

III. Analysis

a. FMLA Claim

Harrison first asserts a claim of wrongful discharge and retaliation under the FMLA. R.

Doc. 1. Harrison contends that he had been approved for FMLA on his wife’s behalf since 2015

and that on two instances where he utilized FMLA leave he faced discrimination or harassment

from supervisors. Id.

Defendant contends that while FMLA affords employees with various rights and

protections, different remedies apply to federal employees as compared to employees of private

business. R. Doc. 7-1, p. 5. Specifically, Defendant contends that as a federal employee of longer

than 12 months, Harrison is covered by Title II of FMLA which, unlike Title I, does not include a

right to judicial review of FMLA related claims. Id.

Federal employees with more than twelve months of service are covered under Title II of

FMLA. 5 U.S.C. 6381(a)(1). Title II of FMLA also contains an interference provision which makes

it unlawful for an employer to interfere with, restrain, or deny the exercise of the attempt to

exercise any rights given to an employee. 5 U.S.C. 6385(a). However, unlike Title I, Title II does

not contain a private right to action for violations of FMLA. Carlson v. White, 133 F. App'x 144,

144-45 (5th Cir. 2005) (citing 5 U.S.C. §§ 6381-6387). Harrison was an employee with the TSA-

MSY from at least 2015 until his termination on June 11, 2019, this was at least four years of

employment which is well over twelve months. Harrison therefore was covered under Title II of

FMLA. R. Doc. 7-1, p. 6. As such Harrison is not able to assert a claim under FMLA, and this

claim is dismissed.

b. §1983 Claim

Harrison also alleges discrimination in violation of 42 U.S.C. §1983. R. Doc. 1, p. 2.

Defendant argues that the §1983 claim should be dismissed because Harrison does not allege any

violation of state law. R. Doc 7 p. 7. Defendant also argues that any §1983 claims should be

dismissed because they are preempted by Title VII.

To state a claim under §1983 the plaintiff must establish that there has been: (1) a

deprivation of a right secured by the Constitution, and (2) that the deprivation was caused by a

person acting under the color of state law. 42 U.S.C. §1983; Bass v. Parkwood Hosp., 180 F 3d

234, 241 (5th Cir. 1999). The Fifth Circuit Court has repeatedly held that federal officials acting

under color of federal law are not subject to suit under §1983. Broadway v. Block, 694 F. 2d 979,

981 (5th Cir. 1982); See also Mack v. Alexander, 575 F.2d 488 (5th Cir. 1978) (upholding the

district court's dismissal of the action where plaintiff filed suit against certain officials of the

Internal Revenue Service).

Additionally, it is well settled that Title VII is the exclusive and preemptive remedy for

claims of racial discrimination in federal employment. See Brown v. General Services

Administration, 425 U.S. 820, 835 (1976). See also Rowe v. Sullivan, 967 F. 2d 186, 189 (5th Cir.

1992) quoting Hampton v. Internal Revenue Service, 913 F. 2d 18, 183 (5th Cir. 199); Watkins v.

Lujan, 922 F. 2d 261, 263 (5th Cir. 1991). However, a plaintiff can avoid their claim being

preempted if they plead facts that are sufficiently distinct from the employment context. See Irwin

v. Veteran Admin., 847 F. 2d 1092, 1095-96 (5th Cir. 1989).

In the present case, Harrison has alleged discrimination by his supervisors, who are all

federal employees. All of the actions complained of also occurred while those federal employees

were allegedly acting under color of federal laws, not state laws. Additionally, while Harrison does

not go into detail about events that support his §1983 claims, a reading of the complaint shows that

all the alleged acts occurred within the context of employment. Therefore, the Court finds that

Harrison has failed to state a §1983 claim and dismissal is appropriate.

c. Title VII Claims

Harrison next raises several claims under Title VII. He alleges that he faced discrimination

due to his race and sex. R. Doc. 1. He contends that he was treated differently, and more harshly

than white employees. Id. He also alleges that he was subject to retaliation, retaliatory harassment,

and a hostile work environment. Id.

i. Race and Sex Based Discrimination

First, the Court will address the claim of race and sex-based discrimination. Harrison

alleges that his termination was the result of a campaign of discrimination and harassment by

STSM Meyers and TSM Chesterfield. Harrison concedes that he was terminated for misuse of a

government credit card and inserting a USB into a TSA-MSY computer. R. Doc. 1. While

acknowledging the reason for his termination was failure to comply with TSA-MSY policies and

procedures, Harrison also contends that other employees, not in his protected group, were not

punished for their failure to comply with the same policies and other unrelated policies. He

additionally contends that when employees not in his protected group were reprimanded, the

consequences were less severe in comparison to what African American male employees faced.

Harrison also contends that management at TSA-MSY did not follow established

procedures and policies when investigating his alleged misuse of the government credit card. Id.

He contends that the guidelines require a thirty-day fact finding period and an investigation by the

TSA Office of Inspector. Id. at p. 5. Harrison asserts that these actions did not occur and that the

disregard for guidelines is common when supervisors interact with Black male employees. Id.

Harrison further contends that after the credit card allegations, TSM Chesterfield, who was

not his direct supervisor, directed his first line supervisor, STSO Ryks, to change the rating on his

2018 Mid-Year Performance Appraisal. According to Harrision, STSO Ryks rated him at five (5)

Achieved Excellence under the category of Integrity/Honesty, but after interference from TSM

Chesterfield, the rating was reduced to three (3) Achieved Expectations. Id. at p. 4. Harrison

contends that the changing of appraisal was a tactic used by management against other African

American employees to “create a negative paper trail” to justify termination. Id. at p. 10. Harrison

also identifies an unnamed white female accused of misuse of a government credit card who did

not receive any form of discipline. Id. at p. 15.

On May 24, 2018, Harrison was scheduled to begin his shift at 3:30 am, but called to

inform TSA-MSY that he would be absent and using FMLA leave. He contends that instead of

coding the absence as FMLA leave, TSM Chesterfield coded him as AWOL. Harrison also

contends that TSM Chesterfield gave him a Letter of Counseling for failing to turn in an OPM-711

form. TSA-MSY policy dictates that these forms should be completed and turned in on the next

working day after the employee takes leave. However, Harrison contends that common practice at

TSA-MSY is to collect the forms on a bi-weekly basis. Id. at p. 6.

Harrison further contends that African American, male, employees face negative

consequences for not following procedure, even though the common practice in the workplace is

different. Id. Harrison additionally contends that when employees who are not African-America

call out of work after their shift began, they face no consequences, while African American

employees are penalized for the same actions. Id.

On February 29, 2019, Harrison once again used FMLA leave to care for his wife. Harrison

contends that he followed proper procedure and called to inform TSY-MSY of his absence before

the start of his shift. Id. at p. 7. That same day, Harrison alleges that TSM Chesterfield left a

voicemail informing him that he was placed on overtime leave restriction and the upcoming

overtime he had scheduled was being cancelled. Id. Harrison further contends that STSM Meyers’

placed twenty-five (25) Black employees on overtime restriction, while only placing one (1) White

employee on overtime restriction. Id. at p. 9. Harrison believes this is another example of race-

based discrimination as Meyers was allowing white employees an opportunity to make more

money through overtime and penalizing Black employees at a higher rate. Id.

Defendant contends that Harrison’s complaint does not allege facts sufficient to establish

a prima facie case of race-based discrimination. R. Doc. 7-1, p. 8. They contend that Harrison does

not plead that he performed to his employer’s legitimate expectations nor does he provide

sufficient facts to establish a comparator. Id. at p. 9.

First, the Court acknowledges Harrison’s pro se status which must be taken into

consideration when determining if Plaintiff’s claims can withstand the motion to dismiss. A

plaintiff who brings a claim pro se is entitled to a liberal reading of that complaint. Payton v.

United States of America, 550 F. App’x at 195 (5th Cir. 2013) (citing Haines v. Kerner, 404 U.S.

519, 520 (1972)). Additionally, a “pro se complaint, ‘however inartfully pleaded,’ must be held to

‘less stringent standards than formal pleadings drafted by lawyers.’” Payton, 550 F. App’x 194,

195 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

Next, the Court also notes that the Supreme Court in Swierkiewicz v. Sorema held that a

plaintiff need not make a prima facie showing of discrimination under the McDonnell Douglas

framework in order to survive a motion to dismiss. See 534 U.S. 506 (2002). The Supreme Court

found that the prima facie framework is an evidentiary standard and not a pleading requirement.

Id. at 510-11. Therefore, the Court need not address whether the Plaintiff established a prima facie

case, instead the Court will assess the claims under “the ordinary rules for assessing the sufficiency

of a complaint.” Id. at 511.

Here, a reading of the complaint in the light most favorable to Harrison, and accepting his

well pleaded facts as true, shows that Plaintiff’s complaint is sufficient. In this case, it is undisputed

that Harrison is a member of a protected class as an African American male. Additionally, Harrison

contends that his termination was not the result of an investigation and the following of TSA

procedures, rather it was the result of targeted negative treatment because of his race and sex.

Moreover, while Harrison does not allege facts to show that he performed to his employers

legitimate expectations, he does allege that when White employees engage in the same rule-

breaking behavior they were treated more favorably than himself and other African-American

employees.

Specifically, Harrison submits that a white, female, employee committed the same acts as

him, misuse of a government credit card, but suffered no consequences. Id. Defendant argues that

this is not sufficient to establish a comparator. However, the Court reiterates that Harrison is not

required to establish every element of the prima facie case at this stage of the case. Moore v.

Metropolitan Human Service Dist., No. 09–6470, 2010 WL 1462224, at *3, 2010 U.S. Dist.

LEXIS 34808, at *18–20 (E.D. La. April 8, 2010). In addition to the one white, female employee

who Harrison alleges committed the same rule violation, he also lists eight other incidents where

white TSA-MSY employees violated workplace rules with no repercussions. R. Doc. 1, p. 14-15.

He also contends that DFSD Randell Lundsgard has suspended, reprimanded, and/or terminated

African American employees for lesser violations when compared to white employees. Id. at p.

15. Therefore, the Court denies Defendants motion to dismiss this claim.

ii. Hostile Work Environment

Harrison next alleges that he was subjected to hostile work environment because of

unwelcomed race-based harassment by his supervisors and false accusations lobbied against him.

Harrison contends that supervisors created a hostile environment by targeting African American

male employees with harsh punishments when compared to white employees.

Harrison first raises allegations related to his use of FMLA leave. He contends that in May

2018, he was marked as AWOL by TSM Chesterfield when taking FMLA leave. He further

contends that in connection with this absence he was cited with a Letter of Counseling for failing

to turn in his OPM- 71 on his first day of work after taking FMLA leave. This Letter of Counseling,

according to Harrison, was an attempt at harassment and discrimination by TSM Chesterfield

because these forms are usually collected at the end of each pay period.

In October 2018, Plaintiff alleges that TSM Chesterfield sent an email to all TSA-MSY

supervisors encouraging management to “not take employees FMLA absences at face value” and

that “he was working on something special for those employees on FMLA.” R. Doc 1 p. 7.

Harrison further contends that on February 28, 2019, when he again utilized FMLA leave, TSM

Chesterfield called him and left a voicemail stating that he was being placed on overtime

restrictions.

In addition to his complaints regarding FMLA leave, Harrison contends that in November

2018, TSM Chesterfield called an Intel briefing and later changed the location without telling

Harrison. After the meeting, Harrison contends that TSM Chesterfield questioned him and other

employees about his location during the briefing.

Harrison also alleges that on two separate occasions in March 2019, after being removed

from security duties due the notice of proposed removal, TSM Chesterfield publicly asked him if

he was working for the ATLAS team and laughed when Harrison responded that he was not.

During the same period, Harrison also alleges that TSM Chesterfield banned him from using areas

open to all employees and forced him to work in cubical in the manager’s office. Additionally,

while Harrison worked in that area, TSM Chesterfield would “dauntingly” walk past the cubical

looking in Harrison direction in a manner that he viewed as intimidating. R. Doc 1 p. 12.

Defendant contends that Harrison’s complaint does not contain any allegations of

discrimination, intimidation, or ridicule that was severe and/or pervasive. Defendant further

contends that Harrison does not allege any facts that the harassment creating the hostile work

environment was based upon his race or sex.

In order to establish his hostile work environment claim, the Plaintiff must prove that his

environment was permeated with discriminatory intimidation, ridicule, and insult so severe or

pervasive as to alter the conditions of employment and create a hostile or abusive working

environment. Jackson v. Honeywell Inter., Inc., 601 F. App'x 280, 287 (5th Cir.

2015) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22, (1993)). However, as previously

mentioned, the prima facie case is an evidentiary standard used in assessing motions for summary

judgment, not a pleading requirement. Swierkiewicz, 122 S.Ct. 992. Thus, the Court will evaluate

whether the Plaintiff has sufficiently plead the alleged acts of harassment were based upon his race

or color and were severe or pervasive. See Douglas v. St. John the Baptist Parish Library Board

of Control, *3 2021 WL2592920 (E.D. La. June 24, 2021).

Accepting Plaintiff’s well-plead facts as true and drawing all reasonable inferences in his

favor, shows that Harrison has not alleged facts sufficient to establish that he was repeatedly

subjected to severe or pervasive discriminatory conduct linked to his race or sex. Harrison

generally alleges that African-American males faced consequences when white employees did not

and that the consequences faced by African-American employees were more harsh than those

faced by white employees. However, in Whitlock v. Lazer Spot Inc., the Fifth Circuit upheld the

dismissal of a hostile work environment claim where the plaintiff alleged in his complaint that he

was punished for infractions that white employees were not punished for. 657 Fed. Appx 284, 287

(5th Cir. 2016).

Harrison also complains of incidents between himself and his supervisors. He contends

that he was called while on FMLA leave, he was marked AWOL, and that he was placed on

overtime restriction for his use of FMLA leave. Harrison alleges that Chesterfield questioned his

work activities after he received the letter of proposed removal. He also contends that Chesterfield

relegated him to working in a cubical in the corner of the managers’ offices and would walk past

the cubicle looking in Harrisons direction. However, this Court has previously held that heightened

scrutiny of work performance and compliance with the work rules generally are not the type of

harassment that can support a hostile environment claim. Douglas v. St. John the Baptist Parish

Library Board of Control, No-21-599, 2021 WL 2592920, at *2 (E.D. La. June 24, 2021)

Additionally, even taken in totality with other incidents, these allegations would not be sufficiently

severe or pervasive and represented isolated events of disagreement between Harrison and his

supervisor. See Elwakin v. Target Media Partners Operating Co. LLC, 901 F.Supp.2d 730, 753-

54 (2012); Hernandez v. Yellow Transportation, Inc., 670 F.3d 644 (5th Cir.2012). Therefore, at

this stage of the case, the complaint is not sufficient to set forth a claim, and dismissal is

appropriate.

Plaintiff also raises a claim of retaliatory harassment creating a hostile work environment.

In order to establish a prima facie case for this claim, the Plaintiff must show: (1) he engaged in a

protected activity; (2) he was the victim of harassment; (3) there was a causal connection between

the harassment and the protected activity; (4) the harassment affected a term, condition, or

privileges of his employment and; (5) the employer knew or should have known of the harassment

and failed to take prompt remedial actions. Valdry v. Brennan, 15-cv-453(JJB), 2017 WL 2702226

at *6 (M.D. La., June 21, 2017). The fourth prong on the prima facie case requires a showing that

the harassment was so severe or pervasive that it altered the conditions of his employment and

created an abusive working environment. Id. As previously explained, the acts that Plaintiff alleges

constituted the harassment and hostile work environment, are not sufficiently severe or pervasive

to support the claim. As such, Plaintiff’s retaliatory harassment claim is dismissed.

iii. Retaliation

Harrison also asserts a claim of retaliation under Title VII. He alleges that he received a

Letter of Counseling, was placed on overtime restriction, incidents where Harrison he faced false

accusations, intimidation, insults, and ridicule, and eventually termination. R. Doc. 1, p. 19.

Defendant requests that the Court dismiss this claim for failure to state a claim. Defendant

contends that the complaint does not allege any adverse employment action as linked to a protected

activity by Harrison. Simply put, the Defendant contends that Harrison did not plead any facts that

show a causal connection between the Plaintiff participation in a protected activity and the

purported retaliation.

To establish a prima facie case for unlawful retaliation, plaintiff must show (i) that he

engaged in activity protected by Title VII, (ii) that an adverse employment action occurred and

(iii) that a causal link existed between the protected activity and the adverse employment action.

Long v. Eastfield Coll., 88 F.3d 300, 305 (5th Cir. 1996) (quoting McMillan v. Rust College, Inc.,

710 F.2d 1112, 1116 (5th Cir.1983)).

An employee has engaged in a protected activity when they: (1) “opposed any practice

made an unlawful employment practice” by Title VII or (2) “made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C.

§ 2000e–3(a); See Long v. Eastfield College, 88 F. 3d 300. With retaliation claims, the plaintiff

must establish a causal connection between the protected activity and the retaliation. A plaintiff

can meet his burden of causation simply by showing close enough timing between his protected

activity and his adverse employment action.” Garcia, 938 F.3d at 243. However, “[t]he protected

act and the adverse employment action must be very close in time to establish causation by timing

alone.” Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm'rs, 810 F.3d 940, 948 (5th Cir.

2015) (quotation marks, citation, and alterations omitted).

Given the definition of a protected activity, a reading of Harrison’s complaint shows that

he filed an EEO complaint and also made complaints and/or filed grievances with his supervisors

and the Designated Grievance Official. The EEO complaint was filed by Harrison in June 2018.

The complaint was in response to the Letter of Counseling he received after failing to turn in the

OPM-71 form and TSM Chesterfield coding his FMLA absences as AWOL. Harrison voluntarily

declined to move forward with the proceedings. R. Doc. 1, p. 9. However, about three (3) months

later Plaintiff alleges that his FY 2018 Performance Appraisal score was changed from a five (5)

to a three (3) in the category of Integrity/Honesty. Id.

Harrison also contends that he raised concerns about the validity and timeline of the

investigation into his alleged misuse of the government credit card. He further alleges that on

February 23, 2019, Designated Grievance Official Greggory Fruge, reached out to supervisors via

email seeking clarification on the “falsifying of documents and the mishandling of the Plaintiff’s

FY 2018 Performance Appraisal grievance.” R. Doc. 1, p. 8. On February 28, 2019, while he was

on FMLA leave, Plaintiff received a call from TSM Chesterfield placing him on overtime

restriction and canceling scheduled overtime shifts on March 2nd and March 7th.

The Fifth Circuit has previously held that a period of two-and-a-half months, Garcia, 938

F.3d at 243 and a period of two months, Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 995

(5th Cir. 2005), are close enough to show a causal connection. Here, there is a period of only 5

days between DGO Fruge contacting Harrison’s supervisors about his allegations and the adverse

action of being placed on overtime restriction and having scheduled shifts cancelled. Therefore,

the Court denies Defendants motion to dismiss this claim.

Accordingly,

IV. Conclusion

IT IS ORDERED that the Defendant's Motion to Dismiss (R. Doc. 7) is GRANTED in

part and DENIED in part

IT IS FURTHER ORDERED that the Motion to Dismiss is GRANTED and Plaintiffs

FMLA and §1983 claims are dismissed for lack of jurisdiction under Rule 12(b)(1).

IT IS FURTHER ORDERED that the Motion to Dismiss is GRANTED and Plaintiff's

hostile work environment and retaliatory harassment claims are dismissed for failure to state a

claim under rule 12(b)(6)

IT IS FURTHER ORDERED that the Motion to Dismiss is DENIED and _ Plaintiff's

race and sex discrimination and retaliation claims shall proceed forward for the reasons assigned.

New Orleans, Louisiana, this 13th day of December 2021.

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Ss : PEL

NU

KAREN WELLS x)

UNITED STATES MAGISTRATE JUDGE

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