Dyson v. Board of Supervisors of Southern University and A&M College

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

ALICE DYSON CIVIL ACTION

VERSUS 19-598-SDD-EWD

BOARD OF SUPERVISORS OF

SOUTHERN UNIVERSITY AND

A&M COLLEGE

RULING

This matter is before the court on the Motion to Dismiss Under Rule 12(B)(6)1

filed by Defendant Board of Supervisors of Southern University and A&M College

(“Defendant”). Plaintiff Alice Dyson (“Plaintiff”) has filed an Opposition2 to this motion,

to which Defendant filed a Reply.3 For the following reasons, the Court finds that

Defendant’s Motion to Dismiss shall be GRANTED with leave to amend.

I. FACTS AND PROCEDURAL HISTORY

The facts alleged by Plaintiff in the Complaint are as vague as they are sparse.

Nonetheless, the Court shall briefly recite them here. Plaintiff began employment with

Southern University (“SU”) in 2003 as an administrative assistant.4 Beginning in the

fall of 2016, Plaintiff began reporting to Dr. Bobby R. Phills (“Phills”), the Chancellor

of SU’s Ag Center and Dean of the College of Agriculture at SU.5 Plaintiff is still an

employee of SU as of the present date.6 Sometime in the fall of 2016, Plaintiff alleges

that Phills “made a number of inappropriate and lewd comments” to her, thus

1 Rec. Doc. 5.

2 Rec. Doc. 11.

3 Rec. Doc. 12.

4 Rec. Doc. 1 ¶4.

5 Id.

6

“creating a hostile work environment permeated with sexual harassment.”7 Plaintiff

reported Phills’ action to SU, and after SU took no action, Phills allegedly “retaliated

against [Plaintiff] for reporting on him to Human Resources.”8 The nature of the

retaliation, Plaintiff alleges, was “increasing the frequency of his harassment

throughout 2017 and into spring and summer 2018.”9 Phills also “enlisted others to

assist in retaliating against [Plaintiff].”10

Plaintiff alleges that she took multiple steps to mitigate her situation internally,

such as discussing the harassment with the Associate Vice President for Human

Resources, including by sending a “lengthy letter.”11 Plaintiff was also contacted by

an attorney who was allegedly retained by SU to investigate the harassment.12 On

February 11, 2019, Plaintiff was notified by the investigator that her allegations were

denied and that Phills “decided to resign from his position as chancellor and

requested a leave of absence.”13 Plaintiff goes on to allege that Dr. James H.

Ammons, Jr., the Executive Vice President/Executive Vice Chancellor of SU, failed

to adequately resolve multiple allegations of sexual harassment that were made by

women against Phills.14

Plaintiff filed a Charge of Discrimination with the Equal Employment

Opportunity Commission (“EEOC”) on June 4, 2019, in which she alleges unlawful

retaliation.15 The EEOC issued a Notice of Dismissal and Notice of Rights on June

7 Rec. Doc. 1 ¶5.

8 Id.

9 Id.

10 Id.

11 Id. at ¶6-7.

12 Id. at ¶8.

13 Id. at ¶10.

14 Id. at ¶11-12.

15

14, 2019.16 Plaintiff subsequently filed the present lawsuit on September 11, 2019,17

alleging retaliation and sexual harassment claims in violation of Title VII of the Civil

Rights Act.18 Defendant filed a Motion to Dismiss Under Rule 12(B)(6) on November

7, 2019, arguing that Plaintiff has failed to allege any facts in support of her claims,

and that in any event, the allegations fail to meet the required elements for a

retaliation claim.

II. LAW AND ANALYSIS

A. Rule 12(b)(6) Motion to Dismiss

When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”19 The Court

may consider “the complaint, its proper attachments, documents incorporated into the

complaint by reference, and matters of which a court may take judicial notice.”20 “To

survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state

a claim to relief that is plausible on its face.’”21

In Twombly, the United States Supreme Court set forth the basic criteria

necessary for a complaint to survive a Rule 12(b)(6) motion to dismiss. “While a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to

relief requires more than labels and conclusions, and a formulaic recitation of the

16 Rec. Doc. 1 ¶17; see also Rec. Doc. 1-2.

17 See Rec. Doc. 1.

18 Id. at ¶1.

19 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin v. Eby Constr.

Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).

20 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).

21 In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Bell Atlantic Corp. v. Twombly, 550

elements of a cause of action will not do.”22 A complaint is also insufficient if it merely

“tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”23 However, “[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.”24 In order to satisfy the plausibility standard, the plaintiff must show “more

than a sheer possibility that the defendant has acted unlawfully.”25 “Furthermore,

while the court must accept well-pleaded facts as true, it will not ‘strain to find

inferences favorable to the plaintiff.’”26 On a motion to dismiss, courts “are not bound

to accept as true a legal conclusion couched as a factual allegation.”27

B. Title VII Claims

i. Administrative Exhaustion

The Court at addresses Defendant’s argument that only a retaliation claim is

presented.28 Other than a brief statement presenting general claims under Title VII,

Plaintiff appears to present a hostile work environment claim in the form of sexual

harassment allegations, while also presenting a claim for retaliation.29 Defendant

argues that Plaintiff’s Charge of Discrimination only presented a claim for retaliation

to the EEOC because Plaintiff only checked the “retaliation” box on the form.30

The Court disagrees. While Plaintiff may not have checked the “sex” box on

the EEOC form, the nature of Plaintiff’s narrative makes clear the conduct of which

22 Twombly, 550 U.S. at 555 (internal citations and brackets omitted).

23 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).

24 Twombly, 550 U.S. at 556.

25 Iqbal, 556 U.S. at 678.

26 Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire

Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004).

27 Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

28 Rec. Doc. 5-1 p. 7.

29 See Rec. Doc. 1.

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she complains. The Fifth Circuit has found that a plaintiff's failure to check a box on

an EEOC Charge is not always fatal error. For instance, in Sanchez v. Standard

Brands, Inc., the Fifth Circuit concluded that a plaintiff's failure to check the “national

origin” box on her EEOC Charge was “a mere ‘technical defect or omission’”31 and

“decline[d] to hold that the failure to place a check mark in the correct box [was] a

fatal error.”32 Ultimately, because the plaintiff had alleged sufficient facts in her

Charge of Discrimination to give rise to a national origin discrimination claim, the

Sanchez court found that plaintiff's failure to mark the appropriate box did not bar her

from including her national origin discrimination claim in her complaint.33

Here, Plaintiff states as follows in her Charge of Discrimination:

In 2016, I filed an internal sexual harassment complaint

against Chancellor Fields. Since that time, I have not received

any other raises with exception of the state raises. I also

believe that I am being subjected to harassment on an

ongoing basis.

I have not been given a reason why [my] raises have been

denied or why I am being harassed.

I believe that I have been subjected to harassment and denied

raises in retaliation for my complaint in violation of Title VII of

the Civil Rights Act of 1964, as amended.34

Plaintiff’s alleged facts in the Charge of Discrimination clearly refer to both sexual

harassment—a hostile work environment claim—and retaliation. Thus, the Court

31 431 F.2d 455, 462 (5th Cir. 1970).

32 Id. at 463.

33 Id. at 463-64.

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finds that Plaintiff has fulfilled Title VII’s administrative exhaustion requirement as to

her hostile work environment claim and her retaliation claim.35

ii. Hostile Work Environment and Retaliation Claims

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice

for an employer ... to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual's race, color,

religion, sex, or national origin.”36 Sexual harassment is a form of sex discrimination. The

Supreme Court has recognized two types of sexual harassment claims: those based on

requests for sexual favors that result in adverse employment actions (a quid pro quo

claim) and those where bothersome attentions or sexual remarks create a hostile work

environment.37 It is clear according to the alleged facts that this matter involves an alleged

hostile work environment rather than a quid pro quo claim.

To establish a Title VII sexual harassment claim based on hostile work

environment, the plaintiff-employee must show: (1) that he belongs to a protected class;

(2) that he was subject to unwelcome sexual harassment; (3) that the harassment was

based on sex; (4) that the harassment affected a “term, condition, or privilege” of

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

and failed to take prompt remedial action.38 To affect a term, condition, or privilege of

employment, the harassment must be “sufficiently severe or pervasive so as to alter the

35 Sapp v. Potter, 413 Fed.Appx. 750, 752 (5th Cir. 2011) (citing Pacheco v. Mineta, 448 F.3d 783, 788 (5th

Cir. 2006)) (“The well-settled law of this circuit is that a public employee cannot proceed in a Title VII

action until that employee has exhausted all available administrative remedies.”).

36 42 U.S.C. § 2000e–2(a)(1).

37 Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742

(1998); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).

38 Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir. 2001)(citing Shepherd v. Comptroller

conditions of the [plaintiff's] employment and create an abusive working environment.”39

The work environment must be “both objectively and subjectively offensive, one that a

reasonable person would find hostile or abusive, and one that the victim in fact did

perceive to be so.”40

As for retaliation, the court analyzes “Title VII retaliation claims under the burden-

shifting framework established in McDonnel Douglas Corp. v. Green.”41 “This framework

has three steps: first, a plaintiff must set out a prima facie case of retaliation; if the plaintiff

sets out a prima facie case, the burden shifts to the defendant to state a legitimate, non-

discriminatory reason for its action; if the defendant provides such a reason, the plaintiff

must prove that it is pretextual.”42 To set forth a prima facie case of retaliation, a plaintiff

must establish that: (1) she engaged in a protected activity as defined under Title VII, (2)

she was subjected to an adverse employment action, and (3) there is a causal connection

between the protected activity and the adverse employment action.43

Defendant urges the Court to dismiss Plaintiff’s claims because the Complaint

“is devoid of facts and alleges nothing more than conclusory assertions.”44 In

reviewing the Complaint, the Court agrees. Although Plaintiff alleges that Phills “made

a number of inappropriate and lewd comments” to Plaintiff and that Phills retaliated

“by increasing the frequency of his harassment,”45 Plaintiff does not allege any

detailed facts constituting sexual harassment or retaliation as defined by law. Further,

39 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

40 Aryain v. Wal–Mart Stores of Tex., LP, 534 F.3d 473, 479 (5th Cir.2008) (quoting Faragher, 524 U.S. at

787, 118 S.Ct. 2275).

41 Wiggins v. St. Luke’s Episcopal Health System, 517 Fed.Appx. 249, 251 (5th Cir. 2013).

42 Id. at 251-52.

43 Feist v. La. Dept. of Justice, 730 F.3d 450, 454 (5th Cir. 2013) (citing McCoy v. City of Shreveport, 492

F.3d 551, 556-57 (5th Cir. 2007)).

44 Rec. Doc. 5 p. 1.

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the Complaint is completely devoid of factual allegations that describe where or how

often the harassment occurred; indeed, Plaintiff’s allegations boil down to some form

of sexual harassment that occurred at some point over a year-and-a-half-long span

of time. Plaintiff alleges vaguely that “Phills enlisted others to assist in retaliating

against [Plaintiff]”46 without alleging how Phills did so or what sort of retaliation was

done. Plaintiff’s case rests upon some sexual harassment allegedly committed by

Phills, but Plaintiff’s nebulous Complaint leaves the details of that harassment up to

the imagination of the Court.

With only a bare-bones allegations of liability, the Court cannot draw a

reasonable inference that Defendant is liable for the alleged misconduct, as required

to survive a motion to dismiss.47 Accordingly, Defendant’s Motion to Dismiss shall be

granted, and the claims against it shall dismissed without prejudice. Under Federal

Rule of Civil Procedure 15(a)(2), “a party may amend its pleading only with the

opposing party’s written consent or the court’s leave” and a “court should freely give

leave when justice so requires.” As to the remainder of the parties’ arguments

pertaining to the relevant case law and legal standards, the Court opts to refrain from

belaboring the Rule 12(b)(6) analysis with respect to such an obviously deficient

Complaint. The Court concludes that Plaintiff shall have leave to amend her

Complaint subject to the below conditions.

46 Rec. Doc. 1 ¶5.

47 Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”). The Court notes that Plaintiff does not even clearly state her

III. CONCLUSION

For the reasons set forth above, Defendant’s Motion to Dismiss48 is GRANTED.

Plaintiff shall have twenty-one (21) days from the date of this Ruling to amend her

Complaint to cure the deficiencies noted herein. Failure to amend by this deadline will

result in a dismissal of all claims with prejudice.

IT IS SO ORDERED.

Signed in Baton Rouge, Louisiana on July 23, 2020.

S

CHIEF JUDGE SHELLY D. DICK

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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