The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MARVIN BROWN CIVIL ACTION
VERSUS
COCA-COLA BOTTLING COMPANY NO.: 3:19-00096-BAJ-EWD
UNITED, INC.
RULING AND ORDER
Before the Court is the Rule 12(b)(6) Motion to Dismiss Claims or
Alternatively Rule 56 Motion for Summary Judgment (Doc. 10) filed by
Defendant, Coca-Cola Bottling Company United, Inc. “CCBCU”). CCBCU seeks the
dismissal of claims brought by Marvin Brown (‘Plaintiff’). Oral Argument is not
required. For the following reasons, the Motion to Dismiss (Doc. 10) filed by
CCBCU is DENIED.
I, BACKGROUND
This matter arises from an incident occurring at Plaintiff's place of work on
November 5, 2016. (Doc. 7 at { 9). Plaintiffis a delivery driver for CCBCU. Cd. at
{ 6). After completing his first shift of the day, Plaintiff was ordered to complete a
“hot shot”! and was told to retrieve a handheld scheduling device that contained the
details of his new assignment. (Ud. at 9 9-10). Plaintiff claims that CCBCU’s
procedure requires that once a supervisor completes a review of the materials needed
1 Plaintiff claims that a “hot shot” refers to an extra work assignment. (Doc. 7 at p. 2).
for the route, a red seal bearing multiple digits is placed on the rear of the truck. (d.
at 11). The last four digits are uploaded to a handheld device. (Ud. at 12). On
November 5, 2016, the assignment Plaintiff received did not contain the last four
digits of a seal number but instead read “KKK.” (id. at J 18). Two supervisors were
present at that time: Plaintiffs supervisor Kenny Clark, as well as Chad McMichael.
id. at 9, 14).
Plaintiff filed a complaint regarding the incident in February 2017 with
CCBCU’s Human Resources manager Hope Zettlemore. (Id. at § 15). Plaintiff and
Zettliemore showed a photograph taken at the time of the incident to McMichael, who
responded that there “would not be any retaliation.”2 Ud. at J 16).
In the months following Plaintiffs complaint to Human Resources, Plaintiff
alleges that he has been retaliated against. Ud. at § 17). Plaintiff complains of
unexpected assignments to less desirable shifts, not receiving the raise he
customarily received each year for the last 16 years, and being made to take more
shifts. Ud. at J 17-22).
Plaintiff filed this lawsuit against Defendant for violating Title VII of the Civil
Rights Act of 1964 (Title VIT’)3 and the Louisiana Employment Discrimination Law
CLEDL?”).4 Ud. at 9 28, 32). Plaintiff alleges that Defendant’s management directed
and participated in the unlawful conduct by failing to prevent and promptly address
2 Plaintiff does not specify to whom McMichael was referring when he promised that there “would not
be any retaliation.”
3 42 U.S.C. § 20008 et seq,
Stat. Ann. § 23:301 et seq.
any acts of race discrimination, harassment, and/or retaliation. (/d. at | 23). Plaintiff
asserts that Defendant willfully acted with malice and reckless indifference to
Plaintiffs federally protected rights. Jd. Plaintiff also alleges that he suffered from
emotional distress, humiliation, and mental anguish as a direct result of Defendant’s
unlawful conduct. Ud. at § 24). Finally, Plaintiff alleges that he suffered loss of
enjoyment of life, inconvenience, and other non-pecuniary losses and incurred
attorneys’ fees and costs as a direct result of Defendant’s unlawful conduct. (Id, at f
25).
Defendant moves for Rule 12(b)(6) dismissal of the Amended Complaint
(“Complaint”) on four grounds: 1) Plaintiff has not properly pled administrative
exhaustion; 2) the Title VII claim was not filed in a timely fashion; 3) Plaintiff did not
provide CCBCU with pre-suit notice of his LEDL claim and; 4) the Complaint fails to
set forth an actionable claim for racial harassment under Title VII and the LEDL
(Doc. 10-2 at pp. 1, 4-7).
Ik LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint
against the legal standard set forth in Rule 8, which requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “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. Igbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for
relief fis] ... a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Ashcroft, 556 U.S. at 679.
“(Fjacial plausibility” exists “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Jd. at 678 (citing Twombly, 550 U.S. at 556). Hence, the
complaint need not set out “detailed factual allegations,” but something “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action”
is required. Twombly, 550 U.S. at 555. When conducting its inquiry, the Court
“accepts all well-pleaded facts as true and views those facts in the light most favorable
to the plaintiff.” Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010).
Rule 56 does not require that discovery be completed prior to a court issuing a
ruling on a motion for summary Judgment. Washington v. Allstate Ins. Co,, 901 F.2d
1281, 1285 (5th Cir. 1990). However, at this stage, the Court does not have enough
information to confidently render a ruling on Defendant’s motion for summary
judgment, and finds that discovery is necessary in this matter. Therefore, the Court
will not consider the Motion for Summary Judgment at this time until discovery has
been completed.
II. DISCUSSION AND ANALYSIS
A, Exhaustion of Administrative Remedies
Defendant claims that Plaintiff has failed to plead that he exhausted available
administrative remedies before pursuing this lawsuit. (Doc. 10-2 at p. 4). “Prior to
filing a Title VII case in federal court, . . . the plaintiff must exhaust his
administrative remedies by filing a charge with the EEOC against his employer.” 42
U.S.C. § 2000e-5(e)(1); Davis v. Ft. Bend Cty., 893 F.3d 300, 308 (5th Cir. 2018),
Plaintiffs complaint does not make an affirmative representation that he
exhausted his administrative remedies. However, Plaintiff has remedied this
deficiency by filing an affidavit alleging that he completed the administrative process.
(Doc. 11-1). In light of Plaintiffs affidavit declaring that he received a right-to-sue
letter before filing this lawsuit, Defendant’s motion is DENIED on this ground.
B. Timeliness of Title VIT Claim
Defendant next argues that even if Plaintiff has properly pled administrative
exhaustion, Plaintiffs Title VII claim is untimely. (Doc. 10-2 at p. 4). Defendant
asserts that Plaintiff filed this lawsuit one hundred days after the HEOC’s November
5, 2018 issuance of the Dismissal and Notice of Rights. Title VII provides that
claimants have ninety days to file a civil action based on an EEOC charge of
discrimination after the EEOC sends a right-to-sue letter. Defendant cites Ringgold
u. National Maintenance Corp., 796 F.2d 769, 770 (5th Cir. 1986), wherein the United
States Court of Appeals for the Fifth Circuit held that a suit was untimely when filed
92 days after the receipt of the right-to-sue letter. The Court held that “the 90-day
period of limitation established by 42 U.S.C. § 2000e-5(H(1) begins to run on the date
that the EEOC right-to-sue letter is delivered to the offices of formally designated
counsel or to the claimant.” Jd.
Plaintiff argues that the motion to dismiss for untimeliness is inappropriate
because he did not receive the right to sue letter until November 14, 2018 and filed
his initial complaint on February 13, 2019, which places him within the 90-day
window to file based on an EEOC charge of discrimination. (Doc. 11 at p. 2). Plaintiff
cites non-binding case law from the Tenth Circuit, which states that a presumption
of receipt is appropriate whenever the actual receipt date is unknown or disputed.
Lozano v. Ashcroft, 258 F.3d 1160, 1165 (10th Cir. 2001). That presumption of receipt
may be rebutted by an affidavit “stating personal knowledge of the receipt date.” Id.
Plaintiff also cites another non-binding case in which the District Court for the
Western District of Louisiana determined that a genuine issue of material fact
existed, and therefore summary judgment was inappropriate, because Plaintiffs
affidavit alleged that he did not receive a right-to-sue letter. Cargo v. Kansas City S.,
No. CIV.A 05-2010, 2009 WL 799695, at *2 (W.D. La. Mar. 24, 2009).
In this case, Plaintiff has also submitted an affidavit in opposition to
Defendant's motion stating that he received his right-to-sue notice on November 14,
2018. (Doc. 11 at p. 4). Plaintiff therefore asserts that the presumption of receipt
rule applied in other cases is inapplicable here, and therefore dismissal of the claim
is inappropriate.
While the parties have not presented any precedential case law on whether the
presumption of receipt rule is applicable when a plaintiff submits a statement
asserting that they received a right-to-sue letter later than seven days after it was
allegedly sent, other circuits have found that the presumption of receipt rule can be
rebutted by evidence that a) the letter was mailed later than its typewritten date or
b) the letter was received by the plaintiff later than presumed. Sherlock v. Montefiore
Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996).
The affidavit supplied by Plaintiff is enough to survive Defendant’s motion to
dismiss for untimeliness. Taking Brown’s affidavit as true, which the Court must do
for the purpose of resolving a motion to dismiss under Rule 12(b)(6), the Title VII
claims are not time-barred because the Complaint was filed within 90 days of the
date on which Brown alleges to have received his right to sue notice. Therefore,
Defendant's motion to dismiss is DENIED on this ground.
C. Pre-Suit Notice for LEDL Claim
Defendant also asserts that Plaintiffs state law claim should be dismissed for
failing to meet a pre-suit notice requirement. (Doc. 10-2 at p. 6). The LEDL contains
a pre-suit notice requirement which requires a party who intends to pursue court
action to give written notice detailing the alleged discrimination at least thirty days
before filing suit. La. Stat. Ann. § 23:303. Defendant asserts that the failure to
provide notice required under the LEDL warrants dismissal of Plaintiffs claims.
(Doc. 10-2 at pp. 6-7).
Defendant is correct that prior to filing a suit for discrimination under the
LEDL, the party intending to sue must give written notice to the opposite party at
least thirty days before filing suit. La. Stat. Ann. § 23:303. However, Louisiana state
and federal courts applying Louisiana law have held that the filing of an EEOC
charge of discrimination satisfies this notice requirement, but that the state claim is
limited to the alleged discrimination detailed in the EEOC charge. Johnson v. Hosp.
Corp. of Am., 767 F. Supp. 2d 678, 700 (W.D. La. 2011).
In this case, Plaintiff has alleged that he filed an EEOC charge of
discrimination, and Defendant does not assert that the alleged discrimination
detailed in the EEOC charge differs from that in the later action. Therefore, the
EEOC charge filed by Plaintiff satisfies the pre-suit notice requirement of the LEDL.
The motion to dismiss the LEDL claim is DENIED on this ground.
D, Failure to State a Claim Under Title VII or the LEDL
Defendant's final ground for dismissal of Plaintiffs claim is that Plaintiff has
failed to state sufficient facts to allege a claim for racial harassment under Title VII
and the LEDL. (Doc. 10-2 at p. 7). Defendant asserts that the alleged actions do not
relate to his race and do not rise to a level of actionable harassment. Jd. Defendant
claims that the only possible race-based incident is the appearance of “KKK” on a
seal, and that there are no other allegations that could possibly be interpreted as
being racially discriminatory. (Doc. 10-2 at p. 9).
Defendant argues that harassment must be severe in order to be actionable
under Title VII. In Clark County School District v. Breeden, 532 U.S. 268, 270
(2001), the Supreme Court of the United States ruled that “simple teasing, offhand
comments, and isolated incidents, unless extremely serious, will not amount to
discriminatory changes in the terms and conditions of employment.” The Court also
held that “harassment is actionable under Title VIT only when it is so severe or
pervasive as to alter the conditions of the victim’s employment and create an abusive
working environment.” Jd. The totality of the circumstances are considered in this
inquiry, “including the frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive utterance and whether
it unreasonably interferes with an employee’s work performance.” fd. at 270-71.
Defendant also cites Oncale v. Sundowner Offshore Services, Inc, 523 U.S. 75, 81
(1998), in which the Supreme Court held that alleged behavior must be “severe or
pervasive enough to create an objectively hostile or abusive work environment — an
environment that a reasonable person would find hostile or abusive.”
In addition, Defendant points to Merrtell v. Slater, No. CIV. A. 97-0800, 1998
WL 88857, at *4 (4.D. La. Feb. 27, 1998), in which the district court granted a motion
to dismiss the plaintiff's racial harassment claim because “the plaintiff had not
alleged any facts which indicate that the conduct of which she complains was racial
in nature, as would be evidenced by racially derogatory speech or action.” In that
case, the plaintiff alleged she had been called a derogatory term primarily used
against women by a co-worker and that this comment constituted racial harassment.
The court found this allegation insufficient to state a claim of racial harassment and
stated that the plaintiff is required to actually plead “racist speech or conduct.”
Plaintiff must show that “but for’ [his] race, [he] would have experienced a different
workplace.” Medley v. Loutstana State Dep't of Justice, No. CIV.A. 09-4570, 2010 WL
4363735, at *3 (E.D. La. Oct, 21, 2010).
Given the record of the case, as well as the standard for 12(b)(6) motions, which
requires that all inferences be taken in a light most favorable to the non-moving
party, dismissing Plaintiffs Title VII claims at this stage is inappropriate. Applying
the “sufficiently severe” factors to this case and observing the situation under the
reasonable person standard, Plaintiffs harassment claim is severe enough to survive
the motion to dismiss. While the specific conduct that is “racial” in nature may not
have been frequent, the other harassing actions that occurred were quite persistent.
Plaintiff's driving route appears to have changed indefinitely and his work hours were
increased. The placement of a “KKK” symbol on a machine intended for an African-
American worker could be seen as “physically threatening or intimidating’ to a
reasonable person. Additionally, the act of pouring sardine juice in a worker's truck
could also be seen as intimidating. Plaintiff has sufficiently pleaded that all of the
alleged acts unreasonably interfered with his work performance and contributed to a
hostile work environment.
Defendant claims that even if such actions occurred, they were not “racial” in
nature. However, the Court finds that Plaintiff has made sufficient allegations that
the triggering event, that his handheld devices read “KKK,” was an incident of race-
based harassment. If not for the initial action taken against Plaintiff on behalf of his
race, Plaintiff would not have complained, and none of the subsequent harassing
actions would have occurred. Defendant’s motion to dismiss is DENIED.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that Defendant's Rule 12(b)(6) Motion to Dismiss
Claims is DENIED.
IT IS FURTHER ORDERED that Defendant's Rule 56 Motion for
Summary Judgment is DENIED WITHOUT PREJUDICE.
Baton Rouge, Louisiana, this “day of December, 2019.
A. 2 4
JUDGE BRIAN A(JACGKSON
UNITED STATES D RICT COURT
MIDDLE DISTRICT OF LOUISIANA