Norman v. ExxonMobil Corporation

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CHRISTOPHER NORMAN CIVIL ACTION

VERSUS

EXXONMOBIL CORPORATION D/B/A

EXXONMOBIL CHEMICAL

CORPORATION NO. 23-00330-BAJ-EWD

RULING AND ORDER

This is an employment discrimination case. Plaintiff Christopher Norman, an

African American man, alleges that while working for Defendant ExxonMobil

Corporation in April 2022, he was “subjected to a racial depiction of himself as a

caricature of a stereotypical African American Male,” which “a white employee” taped

to Plaintiffs chair, made a video recording of, and then “widely disseminated” to

“other coworkers of the plaintiff.” (Doc. 1 at 11-12). Now before the Court is

Defendant’s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure

12(b)(6) (Doc. 6). Plaintiff opposes the motion. (Doc. 15). For the following reasons,

Defendant’s Motion will be granted in part.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff alleges that he worked for Defendant and was “subject[ed] to racially

discriminatory harassment” by Defendant’s “failure to address the hostile working

environment” and that he resigned “due to th[is] mistreatment and lack of concern.”

(Doc. 1 {{ 7-8). Plaintiff alleges that on April 17, 2022, he was “subjected to a racial

depiction of himself as a caricature of a stereotypical African American Male.” Cd. at

{| 7). He claims that a black employee created the image, and then a white employee

taped the image to Plaintiffs chair and “widely disseminated the image as a video

recording” through text messages to Plaintiff's coworkers. Ud. at { 8). Plaintiff also

alleges that nooses have been found on Defendant’s property “5 times between April

2016 and December 2022.” (Id. at | 8). Although Plaintiff admits in his response to

Defendant’s Motion to Dismiss that he “was not directly affected by the hanging of

the noose[s],” (Doc. 15 at 2), Plaintiff alleges that “[t]he failure of ExxonMobil to

address the use of the noose further led to the discriminatory and personalized attack

upon the plaintiff,” presumably referring to the caricature incident, (Doc. 1 { 14).

Plaintiff sued Defendant on May 1, 2023, alleging violations of the Fourth,

Highth, and Fourteenth Amendments to the U.S. Constitution, 42 U.S.C. §§ 1983,

1985, 1986, Title VII of the Civil Rights Act of 1964, La. R.S. 23:332, and La. Civ.

Code arts. 2316, 2320, and 2815. (Doc. 1). On July 3, Defendant moved to dismiss all

Plaintiffs claims for failure to state a claim pursuant to Fed. R. Civ. Proc. 12(b)6).

(Doc. 6). Plaintiff opposed the motion, but conceded he has no claims under 42 U.S.C.

§ 1983 or the U.S. Constitution. (Doc. 15 at 5). Those claims are accordingly dismissed

with prejudice. In his opposition, Plaintiff also did not oppose or address Defendant’s

Motion with respect to his claims under 42 U.S.C. §§ 1985 and 1986 and La. Civ. Code

arts. 2316 and 2320. (See Doc. 15). Plaintiffs failure to contest Defendant’s motion on

those claims constitutes abandonment, and those claims are dismissed with

prejudice. See Oliver v. Military Dep't, 2023 WL 2700709, *10 (M.D. La. 2023) (finding

that the plaintiff “abandoned several .. . claims by failing to address them in her

Oppositions”); Mayo v. Halliburton Co., 2010 WL 43866908, *5 (S.D. Tex. 2010)

(granting motion to dismiss breach of contract claim because plaintiff failed to

respond to defendants’ motion to dismiss on that issue and therefore waived the

argument); Apollo Energy, LLC v. Certain Underwriters at Lloyd’s, London, 387 F.

Supp. 3d 668, 672 (M.D. La. 2019) (finding that plaintiff waived argument by failing

to respond at motion to dismiss stage). This leaves Plaintiffs claims under Title VII,

which provides redress for employees who have been subjected to a hostile work

environment, La. Civ. Code art. 2315, Louisiana’s general negligence statute, and La.

R.S. 23:332, the Louisiana Employment Discrimination Law.

II. LAWAND ANALYSIS

A Rule 12(b)(6) motion to dismiss 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. Proc. 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.

Iqbal, 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 [is] . . .

a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Jd. 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.” Id. at 678 (citing Twombly,

550 U.S. at 556). When conducting its inquiry, the Court must “accept[] all

well-pleaded facts as true and view|[] those facts in the light most favorable to the

plaintiff.” Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010) (quotation

marks omitted).

A. Plaintiffs Hostile Work Environment Claim

To plead a hostile work environment claim, Plaintiff must allege that (1) he

belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the

harassment was because of his race; (4) the harassment affected a term, condition, or

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

harassment and failed to take prompt remedial action. See Hernandez v. Yellow

Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012). “A hostile work environment claim

... necessarily rests on an allegation that an employer has created ‘a working

environment heavily charged with .. . discrimination.” Raj v. La. State Univ., 714

F.3d 322, 330-831 (5th Cir. 2018).

“To affect a condition or privilege of employment, the harassment must be

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and

create an abusive working environment.” Stone v. La. Dept. of Revenue, 590 F. App’x

382, 340 (5th Cir. 2014); see also Alaniz v. Zamora-Quezada, 591 F.3d 761, 771 (5th

Cir. 2009) (holding that the workplace must be “permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the

conditions of the victim's employment” (quotation omitted)). “Simple teasing, .. .

offhand comments, and isolated incidents (unless extremely serious) will not amount

to discriminatory changes in the terms and conditions of employment.” Faragher v.

City of Boca Raton, 524 U.S. 775, 788 (1998) (citations omitted). Still, “[a]n egregious,

yet isolated, incident can alter the terms, conditions, or privileges of employment and

satisfy the fourth element necessary to constitute a hostile work environment.”

Lauderdale v. Tex. Dept. of Crim. Justice, Institutional Div., 512 F.3d 157, 163 (5th

Cir. 2007); see Woods v. Cantrell, 29 F.4th 284, 285 (5th Cir. 2022) “[A] single incident

of harassment, if sufficiently severe, [can] give rise to a viable Title VII claim.”) (citing

EEOC v. WC&M Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007)).

As a preliminary matter, the Court finds that Plaintiffs allegations regarding

nooses found at his workplace cannot support his hostile work environment claim

because he admits in his opposition to Defendant’s Motion that he “was not directly

affected” by these incidents. (Doc. 15 at 2). Leaving open the possibility that

harassment of other workers could be relevant to a hostile work environment claim,

Plaintiff here has failed to plausibly allege that the noose incidents affected any

terms, conditions, or privileges of his own employment. Instead, Plaintiff merely

makes the general allegation that the incidents “shows a lack of concern” on

Defendant’s part regarding racial harassment. (/d.). See Hernandez, 670 F.3d at 652

(acknowledging the lack of clarity regarding the relevance of harassment of other

workers but emphasizing generally that harassment “must have affected ‘a term,

condition, or privilege’ of the ‘victim’s’ employment”) (quoting Septimus v. University

of Houston, 399 F.3d 601, 612 (5th Cir. 2005)).

Plaintiffs other allegation fares better. Plaintiff describes an incident in which

a caricature of Plaintiff as a “stereotypical African American”! was placed in his

workspace and then disseminated as a video via text messages to his coworkers. (Doc.

1 4§ 11-12). Plaintiff further alleges that no action was taken by Defendant following

characterization offers little guidance as to the nature of the image. The Court has no

doubt, however, that discovery will afford Plaintiff the opportunity to describe the image in

greater detail.

this incident, and Plaintiff resigned as a result. (dd. 16). This single incident,

although isolated, may be sufficiently severe for Plaintiff to state a claim for hostile

work environment and survive Defendant’s Motion to Dismiss.

Courts have addressed racist caricatures in the context of hostile work

environment claims before. See Jones v. Dallas Cnty., No. 3:11-CV-2153-D, 2014 WL

1632154, at *5 (N.D. Tex. Apr. 238, 2014); Flowers v. Sessions, No.

217CV1I1I8KSMTPJEFF, 2019 WL 1246199, at *4 (S.D. Miss. Mar. 18, 2019). But

those cases, where the caricature incidents were ultimately found to be insufficiently

severe, are distinguishable from the facts alleged here. Crucially, the racist

caricatures in Jones and Flowers either did not depict the plaintiffs or questions

remained as to whether the plaintiffs were depicted. See Jones, 2014 WL 1682154, at

*5 ([P]laintiffs do not allege that any plaintiff actually saw the caricature when it

was posted [on a bulletin board] or that the caricature was directed at them.”);

Flowers, 2019 WL 1246199, at *4 (“Plaintiff assumed that the drawing [on a dry-erase

board in the office] was supposed to be him[.]’). In contrast, the facts alleged here

allow a reasonable inference that Plaintiff was the target of the caricature because

he alleges that 1t was supposed to be him and because the drawing was placed in his

own workspace, explicitly connecting him to it. (Doc. 1 11-12). In Flowers, the

plaintiff could only “assum[e]” that he was the target of the image. Flowers, 2019 WL

1246199, at *4. But the Flowers decision came at the summary judgment stage, when

“unsubstantiated assertions” no longer sufficed. Flowers, 2019 WL 1246199, at *2. At

the motion to dismiss stage, Plaintiffs complaint need only be “plausible on its face,”

as the Court finds it is here. Ashcroft, 556 U.S. at 678 (quotation omitted).

Distinguishing Plaintiffs case even further, the caricature targeting Plaintiff

was then “widely disseminated” to his coworkers in text messages. (Doc. 1 § 12).

Although the caricatures in Jones and Flowers were visible publicly, those images did

not clearly depict the plaintiffs. Here, in stark contrast, the image targeting Plaintiff

was sent to the people that he worked with so that each person could witness the

personalized racist humiliation. The Court finds that this compounding of the

harassment through widespread publication advances Plaintiffs claim beyond the

pleading stage. See Woods, 29 F.4th at 285 (finding that a single incident stated an

actionable claim of hostile work environment where a supervisor called plaintiff a

racial epithet in front of his fellow employees).

In sum, Plaintiff has adequately stated a hostile work environment claim. He

has alleged facts to show that he is a member of a protected group, he suffered

harassment due to his membership in that group,” the harassment affected a term or

condition of his employment, and Defendant knew or should have known about the

harassment and failed to take prompt remedial action. See Hernandez, 670 F.3d at

651. For these reasons, Defendant’s Motion with respect to this claim will be denied.

B. Plaintiffs State Law Claims

Plaintiff alleges two state law claims in addition to his claim under Title VII.

First, he makes a negligence claim under La. Civ. Code art. 2315. This claim fails

because Article 2315 “cannot serve as the basis for a cause of action that is derived

2 The Court emphasizes that it is inconsequential that the caricature was allegedly created

by another African American employee. See Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 78 (1998) (“[I]t would be unwise to presume as a matter of law that human beings

of one definable group will not discriminate against other members of their group.”).

from employment discrimination.” See Jackson v. Country Club of Louisiana, Inc.,

No. CV 20-452-SDD-EWD, 2021 WL 261538, at *6—7 (M.D. La. Jan. 26, 2021) (citing

Roberson-King v. Louistana Workforce Commission, 904 F.3d 377 (5th Cir. 2018)).

Plaintiffs negligence claim will accordingly be dismissed with prejudice.

Second, Plaintiff alleges a claim under the Louisiana Employment

Discrimination Law, La. R.S. 23:332, which prohibits discrimination based on

“cultural hairstyle,” among other characteristics. The problem is that Plaintiff makes

only the conclusory allegation that Defendant “was in violation of La. R.S. 23:332” for

hairstyle discrimination but in no way alleges facts to support this statement. (Doc.

1 § 19). For this reason, Plaintiff fails to state a claim for hairstyle discrimination.

See Beary v. Centene Corp., No. CV 20-9-JWD-SDJ, 2021 WL 3074198, at *2 (M.D.

La. July 2, 2021), report and recommendation adopted, No. CV 20-9-JWD-SDJ, 2021

WL 38057408 (M.D. La. July 20, 2021) (‘In determining whether it is plausible that a

pleader is entitled to relief, a court does not assume the truth of conclusory

statements, but rather looks for facts which support the elements of the pleader’s

claim.”) (citing Twombly, 550 U.S. at 557). Because leave to amend should be “freely

give[n] ... when justice so requires,” Plaintiff may seek leave to amend his complaint

to allege facts supporting a claim under La. R.S. 23:332. Stem v. Gomez, 818 F.3d 205,

215 (5th Cir. 2016) (citing Fed. R. Civ. Proc. 15(a)(2)).

II. CONCLUSION

Accordingly,

IT IS ORDERED that Defendant ExxonMobil Chemical Corporation’s

Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

(Doc. 6) be and is hereby GRANTED IN PART. Plaintiffs claims under 42 U.S.C.

§§ 1988, 1985, 1986, the U.S. Constitution, and La. Civ. Code arts. 2315, 2316, and

2320 be and are hereby DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that in all other respects, Defendant’s Motion

(Doc. 6) be and is hereby DENIED. Plaintiff may proceed on his Title VII claim and

may seek leave to amend his complaint to state facts supporting his claim under La.

R.S. 23:382.

Baton Rouge, Louisiana, this 7S., of February, 2024

Awad

fet

UNITED STATES TRICT COURT

MIDDLE DISTRICT OF LOUISIANA