Newell v. Acadiana Planning Commission Inc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

. LAFAYETTE DIVISION □

MELISSA M NEWELL CASE NO. 6:20-CV-01525

VERSUS JUDGE ROBERT R. SUMMERHAYS

ACADIANA PLANNING COMMISSION MAGISTRATE JUDGE CAROL B.

INC WHITEHURST

MEMORANDUM RULING

The present matter before the Court is a Rule 12(b)(6) Motion to Dismiss for Failure to

State a Claim [ECF No. 17] filed by defendant Acadiana Planning Commission, Inc. (“APC”). For

the reasons explained below, the Motion to Dismiss is GRANTED in part and DENIED in part.

I.

BACKGROUND

Plaintiff Melissa Newell was hired by defendant APC—or APC’s predecessor—in April.

2014.1 Newell contends that she was “repeatedly passed over for promotional opportunities,

despite superior qualifications, due to her race and/or religion.”* Newell also contends that she was

subjected to a “hostile work environment, again due to her race and/or religion.”? Newell alleges

that she complained about these discriminatory actions and harassment to APC’s Board of

Directors on or around October 11, 2018.4 Newell further alleges that APC’s Director requested

that she withdraw her complaint to the Board and “just pray about it.”> Newell contends that APC -

then retaliated against her for filing a complaint with the Board by terminating her employment on

! Plaintiff's Complaint alleges her hire date was in April 2014 but based upon APC’s response to the EEOC Charge

(ECF No. 3-2), she was actually hired in April 2015.

2 ECF No. 1 at 2.

3 Id.

4 Td.

5 Id.

or about November 1, 2018.° Newell filed a charge with the Equal Employment Opportunity

Commission (“EEOC”) and Louisiana Commission on Human Rights on August 12, 2019 (the

“EEOC Charge”). On September 3, 2020, the EEOC closed Newell’s file and issued a “right to

sue” letter.’ Newell commenced the present action under Title VII on December 1, 2020, and APC

filed a motion to dismiss Newell’s complaint under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. APC filed its First Motion to Dismiss on March 26, 2021.8 The Court subsequently

entered a Memorandum Ruling denying APC’s First Motion to Dismiss without prejudice and

ordering Newell to file an amended complaint to cure deficiencies outlined in the Court’s ruling.’

Newell filed a verified “Amended Complaint” on March 12, 2022.!° APC then filed its Second

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

At this point, the Court notes that, while styled an “amended complaint,” Newell’s current

complaint is essentially a supplemental complaint that expressly incorporates all of the allegations

of her original complaint without repeating the allegations in the original complaint.'! This

“supplemental complaint” asserts additional allegations to support Newell’s claims and address

the Court’s Memorandum Ruling. Ordinarily, “[aJn amended complaint supersedes the original

complaint and renders it of no legal effect unless the amended complaint specifically refers to and

adopts or incorporates by reference the earlier pleading.”’* Where, as here, an amended complaint

adopts and incorporates by reference the plaintiff's original complaint, both complaints are

operative and must be considered in connection with a motion to dismiss.'* Considering Newell’s

8 Id.

7 Id. at 12.

8 ECF No. 3.

° ECF No. 11.

10 ECF No. 13.

Td. at 1 (“Plaintiff incorporates herein all allegations, averments and representations contained in her original

Complaint, in globo and in extenso, and further amends same....”).

2 King v. Dogan, 31 F.3d. 344, 346 (5th Cir., 1994).

Hall v. Louisiana, 974 F.Supp.2d. 978, 991 (M.D. La. 2013).

original and amended complaints together creates a critical discrepancy in her timeline. Newell’s

original complaint states that she lodged her complaint with APC’s board in October 2020 and □

was terminated November 1, 2020.'* Newell’s amended complaint appears to identify the dates of

her complaint and termination as October 2018 and November 1, 2018, respectively, without

addressing the 2020 dates alleged in her original complaint.'> Similarly, Newell’s amended

complaint appears to allege conduct and statements made in late 2018 and early 2019—after she

was allegedly terminated on November 1, 2018.'° Based on Newell’s EEOC charge, it appears that

the October and November 2018 dates for her complaint and termination are the correct dates, and

the Court will rely on those dates in addressing the sufficiency of Newell’s allegations.'’

Il.

RELEVANT STANDARD

Under Rule 8(a)(2) of the Rules of Civil Procedure, a pleading must contain “‘a short and

plain statement of the claim showing that the pleader is entitled to relief.” Accordingly, to “survive

a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but

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.’”!® The facts alleged,

taken as true, must state a claim that is plausible on its face.!° “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

4 ECF No. 1 at 2.

5 ECF No. 13 at 3.

16 Td. at 2-4.

17 Newell’s EEOC charge was expressly referenced in her original complaint and was attached as an exhibit to APC’s

motion to dismiss. ECF No. 3-2.

8 Cwyillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-

dmacber vy. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011). .

defendant is liable for the misconduct alleged.””° A complaint is not sufficient if it offers only

“labels and conclusions,” or “a formulaic recitation of the elements of a cause of action.””!

Il.

DISCUSSION

A. Title Vil Disparate Treatment Claims.

APC first challenges Newell’s disparate treatment claims under Title VII. Newell alleges

that she was subjected to unlawful discrimination on account of race and religion.” Title VII

provides that “it shall be 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 ... or national origin.”*? An

employer’s action will be found unlawful if the employee can demonstrate that race or religion

was a “motivating factor” for an adverse employment action, even if the employer was also

motivated by other lawful factors.24 The pleading standard for a Title VII claim is governed

Swierkiewicz v. Sorema N.A.*?—not the evidentiary standard set forth in McDonnell Douglas

Corp. v. Green.”® Under Swierkiewicz, “there are two ultimate elements a plaintiff must plead to

support a disparate treatment claim under Title VII: (1) an adverse employment action, (2) taken

against a plaintiff because of her protected status.”*” While McDonnell Douglas does not govern

20 Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009).

21 Td, (quoting Twombly, 550 U.S. at 554-57).

22 Although Newell does not expressly identify herself as an atheist, her allegations suggest that she was harassed

because she did not have religious beliefs. Although atheism is not a formal religion—“[l]iterally, it represents

antipathy to religion”—discrimination against employees because of atheistic beliefs is prohibited under Title VII.

Williams v. Allied Waste Serv., No. 1:09-CV-705, 2010 WL 3257733, at *7 (E.D. Tex. June 30, 2010) (citing Trans

World Airlines, Inc. v. Hardison, 432 U.S. 63, 91 n. 4 (1977)); see also Young v. Southwestern Savings and Loan

Ass'n, 509 F.2d 140, 142 (5th Cir.1975) (applying Title VII to religious discrimination claim based on atheism).

3 42 U.S.C. § 2000e-2(a).

24 Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011) (citing 42 U.S.C. § 2000e-2(m)).

25 534 U.S. 506 (2002).

26 411 U.S. 792 (1973).

27 Cicalese v. Univ. of Texas Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019) (quotations omitted) (citing Raj v. La.

State Univ., 714 F.3d 322, 331 (5th Cir. 2013)).

a Rule 12(b)(6) analysis of the adequacy of a plaintiffs Title VII allegations, courts have looked

to McDonnell Douglas in assessing a plaintiffs allegations where, as here, those allegations rely

on circumstantial evidence of discrimination.2* The McDonnel Douglas framework requires a

plaintiff to first establish a prima facie case of discrimination by showing that: (1) she was a

member of a protected class; (2) she was qualified for her position; (3) she was discharged or

subject to an adverse employment action by her employer; and (4) she was replaced by someone

outside her protected class or was treated less favorably than other similarly situated employees

outside of the protected group.”?

1. Newell’s Promotion-related Claims.

APC first challenges Newell’s Title VII “failure to promote” claims. Newell alleges that

“she was repeatedly passed over for promotional opportunities, despite superior qualifications, due

to her race and/or religion.”°° Specifically, she alleges that “in late 2018 and early 2019, throughout

her employment at APC ... [she] stated her ... desire to be considered for promotion to other

position(s) within APC, when such positions became available, but [Monique Boulet] and APC

failed to notify [her] when such potential promotions became available.”>' Newell further alleges

that “when a Director of Communications position opened up, believed to be in late 2018 and early

2019, again no APC email was sent out to Plaintiff, and Ms. Boulet again failed to inform Plaintiff

of the opening, or to consider her for the position, until it was too late because interviews were.

already underway and the deadline to apply had expired.”

78 Cicalese, 924 F.3d at 767 (“In such cases, we have said that it can be ‘helpful to reference’ that framework when

the court is determining whether a plaintiff has plausibly alleged the ultimate elements of the disparate treatment

claim.”) (quoting Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 470 (Sth Cir. 2016)).

29 Id.; Okoye v. University of Texas Houston Health Science Center, 245 F.3d 507, 512 (5th Cir.2001).

3° ECF No. 1 at 2.

31 ECF No. 13 at 1. Boulet was APC’s Chief Executive Officer at the time.

32 Td. at 2.

Newell, however, does not allege that she actually applied for any promotions and that her

applications were denied. Failure to apply for a disputed promotion will bar a failure-to-promote

claim absent a showing that applying for the promotion would have been a “futile gesture.”*? This

“futile gesture” exception requires Newell to show that she was deterred from applying for a

promotion “by a known and consistently enforced policy of discrimination.”*4 Newell only

identifies one specific promotion opportunity in her amended complaint—APC’s Director of

Communications position in 2018—but acknowledges that she did not apply for the position -

because she learned of the opening after the application deadline.*> Newell’s amended complaint

does not identify any other specific promotion opportunity where (1) she applied for the promotion,

and (2) her application was denied.*° Nor does Newell plead any facts showing a “known and

consistently enforced policy of discrimination” that would have made her application for a

promotion a futile gesture?” For example, Newell has not alleged that APC had a consistently-

enforced policy of concealing promotion opportunities or discouraging members of her protected

group from applying for promotions. While Newell does allege that Boulet and APC failed to

inform her of promotion opportunities, this allegation alone does not show that an application

33 Shackelford v. Deloitte & T couche, LLP, 190 F.3d 398, 406 (Sth Cir.1999); see also Grice v. FMC Techs. Inc., 216

Fed. App’x 401, 406 (Sth Cir.2007) (unpublished).

34 Shackelford, 190 F.3d at 406 (citing Teamsters v. United States, 431 U.S. 324, 363-66 (1977)).

35 ECF No. 13 at 2. The Court notes that, as explained in its Memorandum Ruling on APC’s first motion to dismiss

[ECF No. 11 at 6-8], Newell did not timely exhaust her administrative remedies with respect to a claim based on this

specific promotion opportunity.

36 As the Court noted in its Memorandum Ruling on APC’s first motion to dismiss, Newell’s complaint includes no

facts identifying the openings for which she applied, whether she was qualified for those specific openings, whether

those openings were merely lateral transfers, or whether someone outside her protected class was selected for the any

of the openings. Grice, 216 F. App'x 401, 406-07 (the court noted that there was no evidence that the plaintiff “actually

applied for a position and was not promoted.”); Knox v. PHC-Cleveland, Inc., 24 F. Supp. 3d 584, 589-90 (N.D. Miss.

2014) (‘Title VII was not enacted to address every employment decision,’ such as an employer's denial of an

employee's request for a purely lateral transfer.”) (quoting McFall v. Gonzales, 143 Fed. App’x 604, 608 (5th Cir.

2005)). Newell’s amended compiaint does not cure these deficiencies.

37 Shackelford, 190 F.3d at 406.

would have been a futile gesture.** In sum, the lack of any factual allegations showing that Newell

applied for a promotion and was denied is fatal to her promotion-related claims.

2. Newell’s Termination Claim.

APC next challenges Newell’s claim that she was terminated on the basis of race and

religion. Specifically, she alleges that “[o]n or about September 26, 2018, Ms. Boulet engaged in

yelling and knocked items off my desk, talking about ‘you people’ and ‘bad attitudes,’ and then

had someone call the police on me ....”°?? Newell further alleges that on October 11, [2018], she

met with certain members of APC’s board and “addressed, among other things, the racial and

religious discrimination [she] was being subjected to.’”*° She alleges that these board members told

her that they would investigate her charges.*! Nevertheless, she alleges that she was terminated

from her position at APC by the board “on or about November 1, [2018], without any further

discussion or communication regarding the unlawful discrimination Plaintiff had been subjected

to,” and that her position “was filled with a White male, Mr. Ron Czajkowski, a person outside

[her] protected class.’

As with her promotion-related claims, Newell’s amended complaint does not state a

plausible Title VII disparate treatment claim based on her termination. As the Court explained in

its prior Memorandum Ruling, Newell need not plead a Title VII claim with detailed factual

allegations but the allegations supporting her claims must assert facts, not conclusions.” And,

38 See, e.g., Irons v. Aircraft Serv. Int'l, Inc., 392 F. App'x 305, 312 (5th Cir. 2010) (unpublished). In Irons, the plaintiff

argued that “he was not given the opportunity to apply because [his employer] approached who they wanted for the

positions and filled them.” Ja. According to the court, this allegation “without more, does not suggest ‘a known and

consistently enforced policy of discrimination’ in [the employer’s] promotion system.” Jd.

39 ECF No. 13 at 3.

40 Td at 4.

Al Td.

Td.

43 Rule 8 does not require “detailed factual allegations,” but “it demands more than ‘labels and conclusions.’” □□□□□□

556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Moreover, “a formulaic recitation of the elements of a cause of

action will not do.’” /d. (quoting Twombly, 550 U.S. at 555).

those facts must be sufficient to show that Newell has a plausible claim of disparate treatment

under Title VII based on her termination.

As far as Newell’s allegations of race discrimination, she pleads no facts supporting an

inference of racial bias as opposed to a conclusory allegation that her termination was on account

of race discrimination.** Newell alleges that, after her termination, she was replaced by someone

outside her protected group. However, she alleges no specific policies or actions by APC that

show racial bias, nor does she plead facts showing that, by terminating her, APC treated her less

favorably than other similarly situated employees outside of her protected group. Newell’s

allegation that Boulet “knocked items off [her] desk, talking about ‘you people’ and ‘bad

attitudes,’” similarly does not support an inference of racial bias. The Fifth Circuit has held that

“for comments in the workplace to provide sufficient evidence of discrimination, they must be ‘(1)

related [to the protected class of persons of which the plaintiff is a member]; (2) proximate in time

to the [complained-of adverse employment decision]; (3) made by an individual with authority

over the employment decision at issue; and (4) related to the employment decision at issue.’ ”

Boulet’s alleged statements to Newell do not satisfy these requirements. Courts in the Fifth Circuit

have generally held that similar remarks, standing alone without any additional context, are racially

neutral or “stray remarks” insufficient to support a Title VII claim.** Here, Newell pleads no other

facts that permit an inference of racial bias from Boulet’s remarks alone. Nor does Newell identify

any other statements made by Boulet or others at APC—including APC’s board—that demonstrate

5 Id.

46 See, e.g., Douglas v. St. John Baptist Par. Libr. Bd. of Control, No. CV 21-599, 2022 WL 898746, at *19 (E.D. La.

Mar. 28, 2022) (supervisor’s use of the term “you people,” standing alone, was a “race-neutral” term that, “while

Plaintiff may have subjectively felt they reflected discriminatory animus, are not objectively race-based statements.”);

Stone v. Par. of E. Baton Rouge, 329 F. App'x 542, 545 (Sth Cir. 2009) (supervisor’s use of the terms “you people” or

“your people” did not support Title VII claim based on race discrimination).

racial bias or hostility. Accordingly, even accepting all well-pleaded facts as true, Newell has not

pled facts that are sufficient to state a claim for race discrimination that “is plausible on its face.”47

Newell’s amended complaint adds more factual detail to her religious discrimination claim.

Specifically, Newell alleges that:

[s|tarting in 2017 and continuing throughout Plaintiff's employment with APC,

including multiple instances in late 2018 and in 2019, Ms. Boulet: 1) would often

admonish Plaintiff that she (Plaintiff) did not believe in God; 2) verbally stated,

during Plaintiff's first annual evaluation (at which Ms. Bordelon was present), that

"I know you don't believe in God but God loves you"; and 3) instructed Plaintiff to

go to church and pray and that Plaintiff would then be amazed in the ways in which

-ber life would change. On one occasion in early 2019, Ms. Boulet told Plaintiff to

use her (Plaintiff's) lunch break to go to a local church on Pinhook Road in

Lafayette, Louisiana and pray, and that if Plaintiff did so, she (Plaintiff) would get

a promotion and see the “power of how God works.” This repetitive proselytizing

made Plaintiff dread going to work and caused her significant emotional pain.*®

Again, however, Newell has not plead facts showing a connection between Boulet’s alleged

proselytizing in “late 2018 and early 2019,” and her termination in November 2018. Indeed, much

of the specific proselytizing activity cited by Newell appears to have occurred after she was □

allegedly terminated in November 2018 based on the timeline of her amended complaint.”

Moreover, Newell’s allegations pertaining to her interactions with APC’s board in October and

November 2018 identify no statements in connection with her termination that would support an

inference of religious bias or that hostility to Newell’s beliefs had a role in her termination.*”

In sum, Newell has not pled sufficient facts to state claims for discrimination on the □□□□□

of race or religion that are plausible on their face. APC’s motion to dismiss is therefore GRANTED

with respect to Newell’s Title VII disparate treatment claims.

47 Amacker, 657 F.3d at 254.

48 ECE No. 13 at 2.

49 Td. (referring to “multiple instances in late 2018 and in 2019” and “one occasion in early 2019”). Newell provides

no explanation for this discrepancy.

5° Newell alleges that Boulet requested that she withdraw her complaint to APC’s board and to “just pray about it.”

ECF No. 1 at 2. However, this stray comment is insufficient to support a Title VII religious discrimination claim.

B. Title VII Hostile Work Environment Claim.

APC next challenges Newell’s claim of a hostile work environment. A claim of race or

religious-based harassment requires proof that the plaintiff “(1) belongs to a protected group; (2)

was subjected to unwelcome harassment; (3) the harassment complained of was based on race [or

religion]; (4) the harassment complained of affected a term, condition, or privilege of employment;

(5) the employer knew or should have known of the harassment in question and failed to take

prompt remedial action.”°! Harassment affects a “term, condition, or privilege of employment” if

it is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create

an abusive working environment.”*” Harassment is sufficiently “severe or pervasive enough” to

create.a hostile work environment when it is “objectively hostile or abusive’—meaning “an

environment that a reasonable person would find hostile or abusive”—and is subjectively

perceived by the victim as abusive.°> The Supreme Court has “emphasized ... that the objective

severity of harassment should be judged from the perspective of a reasonable person in the

plaintiffs position. This objective inquiry requires that the Court consider “all the □

circumstances,” 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.” “[N]o single factor is required.”*° □

Newell’s hostile workplace claim appears to be based on her allegations of discrimination

based on religion and Boulet’s alleged proselytizing during working hours: □

[s|tarting in 2017 and continuing throughout Plaintiff's employment with APC,

including multiple instances in late 2018 and in 2019, Ms. Boulet: 1) would often

Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).

3 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

54 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).

5° Harris, 510 U.S. at 23.

56 Id.

10

admonish Plaintiff that she (Plaintiff) did not believe in God; 2) verbally stated,

during Plaintiffs first annual evaluation (at which Ms. Bordelon was present), that

"I know you don't believe in God but God loves you"; and 3) instructed Plaintiff to

go to church and pray and that Plaintiff would then be amazed in the ways in which

her life would change. On one occasion in early 2019, Ms. Boulet told Plaintiff to

use her (Plaintiffs) lunch break to go to a local church on Pinhook Road in

Lafayette, Louisiana and pray, and that if Plaintiff did so, she (Plaintiff) would get

a promotion and see the “power of how God works.” This repetitive proselytizing

made Plaintiff dread going to work and caused her significant emotional pain.’

Newell further alleges that, during her evaluation “in late 2018\early 2019, [Boulet] stated ‘God

loves me and I needed to pray.’”°8 Newell's allegations do not support a hostile workplace claim

considering the frequency and nature of Boulet’s alleged proselytizing. First, with respect to

frequency, Newell she has not shown that Boulet’s religious proselytizing was pervasive. The Fifth

Circuit has observed that a hostile workplace claim does not require evidence of a single “smoking

gun” incident to survive dismissal—a “continuous pattern of much less severe incidents can create

an actionable claim.”*? In other words, if the alleged incidents are minor, a plaintiff must show □

that the incidents are sufficiently continuous that they “alter the conditions of plaintiffs

employment and to create an abusive work environment.”®? Here, Newell’s complaint identifies

five discrete instances of proselytizing in late 2018 and 2019. Taking Newell’s allegations as true,

many or all of these discrete instances of proselytizing occurred after her terminationon November

1, 2018. Even if some or all the alleged instances harassment occurred before Newell’s

termination, these five instances alone do not demonstrate a pervasive pattern of harassment. As

explained by the Supreme Court, a hostile work environment for purposes of a Title VII claim is

57 ECF No. 13 at 2.

38 Td. at 4,

Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 444 (Sth Cir. 2011).

6° Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 334 (4th Cir. 2010).

11

a workplace that is “permeated with discriminatory intimidation, ridicule and insult.”°! Newell’s

allegations do not rise to this level.

Furthermore, there is a more troubling discrepancy in Newell’s allegations as far as the

source of the proselytizing alleged by Newell. Newell’s amended complaint identifies Boulet as

the source of the religious proselytizing that allegedly created a hostile work environment. Her

EEOC charge, however, states that a different person, Rachel Godeaux, made the religious-based

statements attributed to Boulet in the amended complaint.“ This EEOC charge is expressly

referenced in Newell’s original complaint and APC attached the charge to its first motion to

dismiss. As with the discrepancy in the dates, Newell does not explain this discrepancy between

her EEOC Charge and her amended complaint. Nor does she identify Godeaux’s position or role

at APC. “‘[D]Jocuments that a defendant attaches to its motion to dismiss are considered part of

the pleadings if they are referred to in the plaintiff's complaint and are central to [its] claim.’”

hen a plaintiff does not attach a pertinent document to the complaint, a ‘defendant may

introduce the exhibit as part of his motion attacking the pleading.’ ’°' When facts in a complaint

are contradicted by facts disclosed in an exhibit that is treated as part of the complaint, the □

allegations are not admitted as true. Here, based on these discrepancies between the EEOC

charge, the original complaint, and the amended complaint, Newell’s allegations do not state a

plausible hostile work environment claim.

61 Harris, 510 U.S. at 21.

& ECF No. 13 at 2-3.

63 ECF No. 3-2 at 19.

64 Sheppard v. Texas Dept. of Transportation, 158 F.R.D. 592, 595 (E.D. Tex. 1994); Charles Alan Wright, et al., 5A

Federal Practice and Procedure: Civil § 1327 (3d ed. April 2016 update).

55 Carter v. Target Corp., 541 Fed. App’x 413, 417 (Sth Cir. 2013) (citing Associated Builders, Inc. v. Alabama Power

Co., 505 F.2d 97, 100 (5th Cir. 1974)); Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d

449 (7th Cir. 1998)(“It is a well settled rule that when a written instrument contradicts allegations in the complaint to

which it is attached, the exhibit trumps the allegations.”); Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)(when

attached documents contain statements that contradict the allegations in the complaint, the documents control and the

court need not accept as true the allegations contained in the complaint.”).

12

Even putting these discrepancies aside, Newell’s allegations do not show conduct that is

sufficiently severe to support a hostile workplace claim. While Boulet’s alleged proselytizing may

have offended Newell, the statements identified in Newell’s complaint do not display the

“discriminatory intimidation, ridicule and insult” typical of cases where courts have sustained a

Title VI claim based on a hostile work environment. For example, one court sustained Title VI

claim based on allegations that “employees with non-conforming [religious] views were ostracized

and subject to intimidation, hostility, and abuse based on their religious beliefs and preferences.”

Newell’s allegations do not show a pattern of conduct that rises to that level. Newell also does not

allege that Boulet’s proselytizing unreasonably interfered with her work performance.

In sum, Newell’s allegations do not state a plausible Title VII claim based on a hostile work

environment.°°

C. Title VII Retaliation Claim.

Finally, APC challenges Newell’s retaliation claim. To establish a prima facie case of

retaliation under Title VII, Newell must show that “(1) [she] participated in an activity protected

by Title VII; (2) [her] employer took an adverse employment action against [her]; and (3) a causal

connection exists between the protected activity and the adverse employment action.”°” A

“protected activity” under Title VII is defined as “opposition to any practice rendered unlawful by

Title VII, including making a charge, testifying, assisting, or participating in any investigation,

6 As in its first motion to dismiss, APC again argues that Newell failed to timely exhaust her administrative remedies

with respect to the discrimination claims based on religion. As the Court explained in its prior memorandum ruling,

the Fifth Circuit “interprets what is properly embraced in review of a Title VII claim somewhat broadly, not solely by

the scope of the administrative charge itself, but by the scope of the EEOC investigation which ‘can reasonably be

expected to grow out of the charge of discrimination.’” Pacheco v. Mineta, 448 F.3d 783, 789 (Sth Cir. 2006) (quoting

Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)). The circuit does not require that an EEOC

charge allege a prima facie Title VII case in order to satisfy the exhaustion requirement. /d. While Newell’s EEOC

Charge does not state a prima facia Title VII claim, it fairly encompasses the claims asserted in her complaint. The

charge specifically references discrimination based on religion and race. The charge also refers to Newell’s allegations

that APC failed to promote her, and that it terminated her on the grounds of race and religion. ECF No. 3-2 at 19-20.

87 Newbury, 991 F.3d at 678 (citing McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007)).

13

proceeding, or hearing under Title VII.”°* Title VII thus covers two distinct types of protected

activity: (1) opposition to any practice rendered unlawful by Title VII (the “opposition clause”),

and (2) making a charge, testifying, assisting, or participating in any investigation, proceeding, or

hearing under Title VII (the “participation clause”). Evidence that the plaintiff opposed the

defendant's conduct, standing alone, does not satisfy the opposition clause. Rather, the clause

“requires opposition of a practice made unlawful by Title VII.”’° However, the Fifth Circuit has

made clear that the standard is not whether the plaintiff can successfully state and support a Title

VII claim but whether the plaintiff “reasonably believes the employment practice to be

unlawful.””! This “reasonable belief’ standard acknowledges that there is “some zone of conduct

that falls short of an actual violation but could be reasonably perceived to violate Title VII.”

Here, Newell has pled sufficient facts with respect to her Title VII retaliation claim to

survive dismissal under Rule 12(b)(6). Specifically, she has alleged that she engaged in a protected

activity under the “opposition” clause by lodging a complaint with APC’s board and requesting an

investigation.”? Newell alleges that she provided information to APC board members regarding

her discrimination claims.’4 Newell’s allegations are also sufficient to support a “reasonable

belief” that her termination was unlawful for purposes ofa Rule 12(b)(6) motion to dismiss. Newell

also alleges that she was terminated, which qualifies as an adverse employment action.”°

88 Williams v. Recovery Sch. Dist., 859 F. Supp. 2d 824, 830-31 (E.D. La. 2012) (citing Ackel v. Nat'l Commce'ns, Inc.,

339 F.3d 376, 385 (5th Cir. 2003)).

Crawford v. Metro. Gov't of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 274 (2009).

7 EE.O.C. v. Rite Way Serv., Inc., 819 F.3d 235, 240 (5th Cir. 2016) (emphasis in original).

1 Id. (citing Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1136 (Sth Cir. 1981)) (emphasis added).

72 Td. at 241.

® ECF No. 13 at 3-4.

14 Id

® Unlike a Title VII discrimination claim, an adverse employment action for purposes of a retaliation claim “need not

rise to the level of ultimate employment decisions.” Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 827 (5th Cir.

2019). Some Fifth Circuit cases had held that the “ultimate employment decision” requirement for Title VI

discrimination cases applies equally to Title VII retaliation cases. See, e.g., Mattern v. Eastman Kodak Co., 104 F.3d

702, 708 (Sth Cir. 1997) (the adverse employment action required to support a Title VI retaliation claim is limited to

“ultimate employment decisions,” for example “hiring, granting leave, discharging, promoting, and compensating”).

14

Finally, Newell must plead facts showing causation. At the pleading stage, the causation

standard is less stringent than the strict “but-for” causation standard.’° A plaintiff need not show

that the protected activity was the sole cause for retaliation, only that the two are “are not

completely unrelated.””” The employee may prove this through direct or circumstantial evidence.”

At the pleading stage, a plaintiff can establish causation by showing a temporal proximity between

the protected activity and the adverse employment action alone.” This temporal proximity must

be “very close,” and the Supreme Court has held that a period of three months is insufficient to

show causation.®° The Fifth Circuit’s jurisprudence suggests that two and one-half months is the

longest period that can, without more, show causation for retaliation purposes.*! Here, Newell

alleges that she lodged her complaint with APC’s board in October 2018 and that she was

terminated less than a month later, on November 1, 2018. Newell further alleges that Boulet

requested that she withdraw her complaint to APC’s board and “just pray about it.”®? Newell

alleges that, after she lodged her complaint with the board, Boulet insisted that she be terminated.*°

These allegations are sufficient to show causation for purposes of a Rule 12(b)(6) motion to

dismiss.

The Supreme Court abrogated this requirement for retaliation claims in Burlington N. & Santa Fe Ry. Co. v. White, .

548 U.S. 53 (2006) (“We conclude that Title VII's substantive provision and its antiretaliation provision are not

coterminous... [and] therefore reject the standards applied in the Courts of Appeals that have treated the antiretaliation

provision as forbidding the same conduct prohibited by the antidiscrimination provision and that have limited

actionable retaliation to so-called ‘ultimate employment decisions.’”) Accordingly, the standard for an adverse

employment action in the context of a retaliation claim is an employment action that is “materially adverse, such that

it would dissuade a reasonable employee from making a discrimination complaint.” Newberry, 991 F.3d at 678. Under

either standard, Newell’s termination qualifies as an adverse employment action. Rodrique v. PTS Mgmt. Group, LLC,

550 F. Supp. 3d 376, 402 (W.D. La. 2021).

7 Newberry, 991 F.3d at 678.

Besser y. Texas Gen. Land Off, 834 F. App'x 876, 882 (5th Cir. 2020).

® McCoy, 492 F.3d at 556.

Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 578 (Sth Cir. 2020), as revised (Aug. 14, 2020) (citations omitted).

8° Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).

81 Brown, 969 F.3d 578 (noting that the court has held periods of six-and-a-half weeks, two months, and two-and-a-

half months to be close enough to show a causal connection).

82 ECF No. 1 at 2.

83 ECF No. 13 at 4.

15

In sum, Newell’s retaliatory discharge allegations address each of the essential elements of

her retaliatory discharge claim under Title VII. Accordingly, the Court DENIES the Motion to □

Dismiss with respect to this claim.

IV.

CONCLUSION

For the foregoing reasons, the Court GRANTS APC’s Motion to Dismiss [ECF No. 17] in

part and DENIES the motion in part. Newell’s disparate treatment and hostile work environment

claims under Title VII are DISMISSED.

THUS DONE in Chambers on this 25th day of October, 2022.

ROBERT R. SUMMERHAYS

UNITED STATES DISTRICT JUD

16