Rodgers v. Refresco U.S., Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

SAUDI L. RODGERS, )

)

Plaintiff, )

)

v. ) Case No. CIV-20-169-KEW

)

REFRESCO U.S., INC., )

)

Defendant. )

OPINION AND ORDER

This matter comes before the Court on Defendant’s Combined

Motion and Memorandum of Law in Support of Motion to Dismiss

(Docket Entry #8). Plaintiff initiated this action on June 1, 2020

by filing his Complaint. The parties consented to the undersigned

judge on October 29, 2020.

In the Complaint, Plaintiff Saudi Rodgers (“Plaintiff”),

alleges he is an African American who was employed as a blender by

Defendant Refresco U.S., Inc. (“Refresco”), located in Fort

Gibson, Oklahoma, from May of 2018 until May of 2019. (Complaint

at ¶¶ 6, 11, 32, 28-30). Plaintiff contends that in August of 2018,

he was approached by David Webb, Manager of Operations, about

becoming a Team Lead in Refresco’s processing department.

Plaintiff was interested in the position. One of its requirements

was the completion of a supervisory course at Indian Capital

Technology Center (“ICTC”). Plaintiff alleges he began the course

in October of 2018. (Complaint at ¶ 12). He asserts, however, that

when his white co-workers learned he would soon be the new Team

Lead, they became racially hostile to him. (Complaint at ¶ 13).

The examples provided by Plaintiff in the Complaint of

“racially motivated harassment and disparate treatment” include:

a. In November of 2018, Plaintiff’s workstation was

vandalized by co-workers. They wrote the word “ni[**]er”

on the lid of his blender and “Saudi sucks co[*]k” on

the side. Plaintiff reported the vandalism to Antonio

Lollis, Team Lead, and Karen Smith, Supervisor, who both

saw the writing. After watching the security camera

footage for approximately ten minutes, Ms. Smith told

Plaintiff she did not have all day and stopped. Human

Resources was never informed of the incident.

Subsequently, Plaintiff reported the incident to Mike

Miller, Human Resource Manager, himself. No

investigation was done.

b. In December of 2018, Brian Sallee, Co-Worker, and

Jeff Thompson, Team Lead, used the company computer to

download Plaintiff’s background regarding his felony

conviction. They proceeded to spread copies of the

felony around the plant while telling people they were

going to get Plaintiff fired so he would not become a

team lead. Plaintiff reported the incident to HR, but

nothing was done.

c. Mr. Webb approached Plaintiff in December of 2018

and asked if he would be a trainer for the new employees.

Following Plaintiff’s acceptance, Mr. Sallee went to Mr.

Webb claiming Plaintiff called Kamonie Carey ignorant

during training. After an investigation, the report was

found to be false. However, Plaintiff still lost his

position as trainer.

d. Plaintiff finished his classes at ICTC in December

of 2018. No one from Refresco attended the graduation,

despite assurance from Mr. Miller that someone from the

company would be there. Further, representatives of

Refresco attended the graduations of Plaintiff’s co-

workers.

e. On several occasions when Team Leads were not

working, Plaintiff was given the duty of acting as Team

Lead. However, his white co-workers refused to listen to

him.

f. On several occasions, Plaintiff noticed that the

company’s attendance policy was not being applied

equally and fairly amongst all employees.

(Complaint at ¶ 14a-f).

Plaintiff contends that on several occasions he reported

concerns regarding the harassment and treatment he experienced

from his co-workers to the HR Manager Mike Miller (“Miller”).

Miller allegedly told Plaintiff he was “overthinking the

situation” and he would have to “overlook some people and the

things they do.” According to Plaintiff, at the end of December of

2018, he learned the Team Lead position would be filled by one of

his white co-workers who had not completed the required ICTC class

and who had not worked for Refresco long enough to qualify for the

position. Plaintiff asserts that after his co-worker’s promotion

was announced in January of 2019, he notified Miller that he had

filed paperwork with the Equal Employment Opportunity Commission

(“EEOC”). (Complaint at ¶¶ 15-17).

Plaintiff also asserts that in February of 2019, he and a

white co-worker had an altercation when the co-worker called him

derogatory names. Plaintiff was called to HR, and based upon one

witness interview, he received a write up for the incident. Once

additional witnesses were interviewed, the write up was rescinded.

(Complaint at ¶ 18-20).

Plaintiff alleges that in March of 2019, he spoke with Miller

about points on his attendance record. Plaintiff was given a point

for each day he missed, while his white co-workers did not receive

points for tardiness or absences. Plaintiff described Miller’s

demeanor toward him as “short” and “aggressive,” and he refused to

provide Plaintiff with contact information for his supervisor.

According to Plaintiff, Miller called him back to his office later

that day, informing Plaintiff he was becoming a “disgruntled

employee because of his attitude and complaints.” Plaintiff

alleges that the next day, he was called back to Miller’s office

again and received a written warning for being a disgruntled

employee. Plaintiff informed Miller he believed he was retaliating

against Plaintiff for his complaints, for his EEOC filing, and for

asking for information about Miller’s supervisor. Plaintiff

refused to sign the written warning. (Complaint at ¶¶ 21-24).

Plaintiff maintains that in April of 2019, he reported an

offensive comment made about another African American co-worker to

his supervisor, and nothing was done about the complaint. Plaintiff

also alleges that he was told by co-workers that a supervisor

approached them to write a false report about Plaintiff so Refresco

could fire him, but both employees refused. (Complaint at ¶¶ 26-

27).

Plaintiff further alleges that he was suspended for three

days in May of 2019 for touching a co-worker’s hair. He denied

Miller’s characterization of the incident as “assault and battery”

and told him who was present when the incident occurred. Miller

never interviewed the witnesses. He requested Plaintiff come meet

with him about the investigation, and Plaintiff declined when

Miller refused to disclose any information over the telephone.

Plaintiff told Miller he would not return to work because of the

harassment, retaliation, and discrimination. (Complaint at ¶¶ 28-

30).

On October 1, 2019, Plaintiff presented his Charge of

Discrimination to the EEOC and the Office of Civil Rights

Enforcement for the Oklahoma Attorney General’s Office. See Charge

of Discrimination (Docket Entry #8-1). Plaintiff asserts that the

EEOC issued a Notice of Right to Sue letter on March 11, 2020.

(Complaint at ¶¶ 9-10).

Based on these allegations, Plaintiff asserts claims against

Refresco under Title VII, §§ 2000 et. seq., including: (1) race

discrimination based on disparate treatment and hostile work

environment, and (2) retaliation based upon reports of

discrimination and the filing of a charge of discrimination.

Through its motion to dismiss, Refresco asserts that

Plaintiff’s allegations of a constructive discharge, a hostile

work environment, and any allegations supporting his claims for

discrimination and/or retaliation that occurred prior to January

1, 2019, must be dismissed because Plaintiff failed to exhaust his

administrative remedies and the Court therefore lacks subject

matter jurisdiction under Fed. R. Civ. P. 12(b)(1) to consider

them. Refresco further contends that Plaintiff’s race

discrimination claim is subject to dismissal under Fed. R. Civ. P.

12(b)(6), because Plaintiff has failed to plead facts supporting

the elements of his claim.1

As an initial matter, this Court notes the exhaustion of

administrative remedies is no longer considered a jurisdictional

issue. In Lincoln v. BNSF Railway Co., 900 F.3d 1166 (10th Cir.

2018), the Tenth Circuit Court of Appeals determined that “our

precedent that the filing of an EEOC charge is a jurisdictional

prerequisite to suit is no longer correct.” Id. at 1185. The court

held that “a plaintiff’s failure to file an EEOC charge regarding

a discrete employment incident merely permits the employer to raise

an affirmative defense of failure to exhaust but does not bar a

federal court from assuming jurisdiction over a claim.” Id. Here,

the distinction is somewhat immaterial because Refresco has raised

the exhaustion issue in its motion to dismiss. See Smith v.

Cheyenne Retirement Investors, L.P., 904 F.3d 1159, 1163-64 (2018)

(recognizing the Lincoln decision as the state of the law in the

Tenth Circuit and noting exhaustion was affirmatively raised in

1 Other than as discussed herein, Refresco does not seek

dismissal of Plaintiff’s Second Claim – Retaliation in Violation of Title

VII.

the defendant’s motion to dismiss).

The principal purposes of the exhaustion rule are “1) to give

notice of the alleged violation to the charged party; and 2) to

give the EEOC an opportunity to conciliate the claim, which

effectuates Title VII’s goal of securing voluntary compliance.”

Id. at 1164 (quotation omitted). The court is to “liberally

construe” the allegations in the EEOC charge, but “‘the charge

must contain facts concerning the discriminatory and retaliatory

actions underlying each claim.’” Id., quoting Jones v. U.P.S.,

Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (emphasis in original);

see also National Railroad Passenger Corp. v. Morgan, 536 U.S.

101, 114 (2002) (“Each incident of discrimination and each

retaliatory adverse employment decision constitutes a separate

actionable ‘unlawful employment practice[,]’” for which

administrate remedies must be exhausted.). After receiving a

notice of a right to sue from the EEOC, a plaintiff’s court claim

“is generally limited by the scope of the administrative

investigation that can reasonably be expected to follow the charge

of discrimination submitted to the EEOC.” Smith, 904 F.3d at 1164

(quotation omitted).

Refresco’s first argument in its motion to dismiss is that

Plaintiff failed to exhaust his administrative remedies regarding

his allegations of constructive discharge. Refresco contends that

because Plaintiff failed to allege that he was constructively

discharged in the charge of discrimination that his claim must be

dismissed for failure to exhaust. Plaintiff asserts that because

the charge references his discharge, his allegations are specific

enough to encompass the circumstances surrounding his discharge

and to have been included in the EEOC’s investigation.

Although Refresco is correct that courts have found that a

constructive discharge claim involves a discrete and identifiable

act which requires an administrative charge, both of the cases

cited by Refresco involve situations where the plaintiffs did not

include the discharge in the charge of discrimination. Here,

Plaintiff’s charge includes references to Plaintiff’s discharge in

June of 2019. See Charge of Discrimination (Docket Entry #8-1)

(“According, to Mike Miller, Human Resources, in June 2019 I was

discharged as a disgruntled employee.”). Based upon the

information contained in the charge, this Court finds that the

reference to a discharge should have triggered an inquiry into the

circumstances surrounding Plaintiff’s discharge from Refresco.

This Court therefore finds that Plaintiff’s allegations of

constructive discharge are within the scope of the charge and

thereby exhausted.

Refresco next argues that Plaintiff’s claim of a hostile work

environment is subject to dismissal for failure to exhaust because

Plaintiff did not include any facts in his charge suggesting a

hostile work environment claim. Plaintiff responds that his charge

does include such facts, as he alleged discrimination based on

racial hostility and for retaliation based on his complaints.

To allege a hostile work environment claim, the charge should

state facts asserting a workplace “permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe or

pervasive to alter the conditions of [a plainitff’s] employment

and create an abusive working environment.” Davis v. U.S. Postal

Service, 14 F.3d 1334, 1341 (10th Cir. 1998) (quotation omitted).

In the text portion of his charge, Plaintiff referenced

circumstances where “coworkers wrote ‘nig.er and Saudi sucks di.k”

on my work station, and [a coworker] commented ‘nig.er’ throughout

the work area frequently.” Charge of Discrimination (Docket Entry

#8-1). Plaintiff also referenced how he was treated differently

from other employees because of his race and retaliated against

for his complaints about such treatment. Id. This Court again finds

that the allegations contained in Plaintiff’s charge are enough to

suggest a hostile work environment claim by Plaintiff.

Moreover, Refresco makes a more general argument that

Plaintiff’s claims of discrimination and retaliation are limited

to the time period beginning on January 1, 2019. Refresco contends

that Plaintiff indicated in the charge of discrimination that the

earliest discrimination occurred in January of 2019 and the latest

discrimination occurred in June of 2019, and Plaintiff did not

“check the box” that the alleged discrimination was a continuing

action. Specifically, Refresco references several of Plaintiff’s

allegations from the Complaint that include conduct or incidents

which occurred as early as November of 2018. Refresco contends

that because Plaintiff did not check the “continuing action” box

and the charge does not include any events prior to January of

2019, Plaintiff has failed to exhaust those allegations of

discrimination and/or retaliation that occurred prior to January

of 2019.

Plaintiff responds that the relevant time period included 300

days before the filing of the charge on October 1, 2019, which

includes allegations as far back as December 5, 2018. He maintains

that incidents prior to January 1, 2019, are included in the text

of the charge, although they are not referred to directly by date.

He further asserts that the allegations supporting his hostile

work environment claim are different from claims involving

discrete acts, and it may include actions that occurred outside

the 300-day period if all of the complained of acts collectively

constitute one “unlawful employment practice.”

As an initial matter, “‘[t]he failure to mark a particular

box creates a presumption that the charging party is not asserting

claims represented by that box.’” Johnson v. Wal-Mart Stores East,

LP, 2017 WL 3586710, at *4 (N.D. Okla., Aug. 18, 2017), quoting

Jones, 502 F.3d at 1186. The presumption, however, “‘may be

rebutted . . . if the text of the charge clearly sets forth the

basis of the claim.’” Id. Here, the text of Plaintiff’s charge

includes references to alleged racial and other offensive conduct

toward Plaintiff by his co-workers that occurred prior to January

1, 2019, and it also references that Plaintiff’s white co-worker

was promoted over Plaintiff to the Team Lead position.

Plaintiff filed his charge on October 1, 2019, with both the

Office of Civil Enforcement and the EEOC, thus triggering the 300-

day provision and resulting in a time period for incidents of

discrimination or retaliation occurring between December 5, 2018-

October 1, 2019. See Salemi v. Colorado Public Employees’

Retirement Assoc., 747 Fed. Appx. 675, 688 (10th Cir. 2018) (“[A]

plaintiff fails to timely exhaust h[is] administrative remedies

relative to a discrete incident of discrimination or retaliation

that occurs more than 300 days before [h]e files a charge with the

EEOC.”). Here, several of the allegations made by Plaintiff in

paragraphs 14 and 15 of the Complaint do not include a date as to

when they occurred. At this stage of the proceedings, the Court

will not dismiss them as unexhausted.

Plaintiff maintains that all the allegations identified by

Refresco support his hostile work environment claim based on race

and should be considered as one “unlawful employment practice.”

Regarding hostile work environment claims, the Tenth Circuit

explained their treatment in Hansen v. SkyWest Airlines, 844 F.3d

914 (10th Cir. 2016):

“[H]ostile work environment claims are different. A

hostile work environment claim is composed of a series

of separate acts that collectively constitute one

‘unlawful employment practice.’ Thus, [t]he ‘unlawful

employment practice’ . . . cannot be said to occur on

any particular day. Rather, it takes place over time,

and, in direct contrast to discrete acts, a single act

of harassment may not be actionable on its own.

Consequently, [i]t does not matter, for purposes of the

statute, that some of the component acts of the hostile

work environment fall outside the statutory time period.

Provided that an act contributing to the claim occurs

within the filing period, the entire time period of the

hostile environment may be considered by a court for the

purposes of determining liability. The court’s task

then, is to determine whether the acts about which an

employee complains are part of the same actionable

hostile work environment practice, and if so, whether

any act falls within the statutory time period.”

Id. at 923, quoting Morgan, 536 U.S. at 110, 115, 117, and 120

(quotation marks omitted).

At this juncture of the proceedings, the Court finds that the

allegations contained in Plaintiff’s Complaint in paragraphs 14a-

f and paragraph 15 may be considered part of the same actionable

hostile work environment practice, as Plaintiff has alleged that

they are examples of his being “subjected to racially motivated

harassment and disparate treatment.” Moreover, even if this Court

determined Plaintiff had failed to satisfy the timeliness

requirement as to certain of the allegations, this would not

preclude Plaintiff from referring to the prior acts to support a

timely claim. See Morgan, 536 U.S. at 113 (“Nor does the statute

bar an employee from using prior acts as background evidence in

support of a timely claim.”).

Lastly, Refresco alleges that Plaintiff’s race discrimination

claim fails under Fed. R. Civ. P. 12(b)(6), because Plaintiff fails

to plead facts to support the claim. Plaintiff responds that he

has sufficiently pleaded a prima facie case of race discrimination.

Bell Atlantic changed the legal analysis applicable to

dismissal motions filed under Fed. R. Civ. P. 12(b)(6), creating

a “refined standard” on such motions. Khalik v. United Airlines,

671 F.3d 1188, 1191 (10th Cir. 2012) (citation omitted). Bell

Atlantic stands for the summarized proposition that “[t]o survive

a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim for relief that is

plausible on its face.’” Ashcroft, 556 U.S. at 678, quoting Bell

Atlantic, 550 U.S. at 570. The Supreme Court did not parse words

when it stated in relation to the previous standard that “a

complaint should not be dismissed for failure to state a claim

unless it appears beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him to relief”

is “best forgotten as an incomplete, negative gloss on an accepted

pleading standard.” Bell Atlantic, 550 U.S. at 546.

The Court of Appeals for the Tenth Circuit has interpreted

the plausibility standard as referring “to the scope of the

allegations in the complaint: if they are so general that they

encompass a wide swath of conduct, much of it innocent, then the

plaintiffs ‘have not nudged their claims across the line from

conceivable to plausible.’” Robbins v. Oklahoma, 519 F.3d 1242,

1247 (10th Cir. 2008). The Bell Atlantic case, however, did not

intend the end of the more lenient pleading requirements of Fed.

R. Civ. P. 8(a)(2). Khalik, 671 F.3d at 1191. Rather, in Khalik,

the Tenth Circuit recognized the United States Supreme Court’s

continued endorsement of Rule 8’s “short and plain statement”

requirement in the case of Erickson v. Pardus, 551 U.S. 89 (2007),

wherein the Supreme Court found “[s]pecific facts are not

necessary; the statement need only ‘give the defendant fair notice

of what the . . . claim is and the grounds upon which it rests.’”

Id. at 93.

To establish a prima facie case of race discrimination under

Title VII, a plaintiff must show: (1) membership in a protected

class; (2) qualifications for the position at issue; (3) an adverse

employment action; and (4) the adverse employment action “occurred

under circumstances which give rise to an inference of unlawful

discrimination.” Singh v. Cordle, 936 F.3d 1022, 1037 (10th Cir.

2019), quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d

1220, 1229 (10th Cir. 2000).2 Refresco concedes that Plaintiff

belongs to a protected class. It challenges whether Plaintiff has

2 Although “the 12(b)(6) standard does not require that

Plaintiff establish a prima facie case in [his] complaint, the elements

of each alleged cause of action help to determine whether Plaintiff has

set forth a plausible claim.” Khalik, 671 F.3d at 1191, citing

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002).

alleged a plausible claim of race discrimination under the second,

third, and fourth prongs of the prima facie case.

Having reviewed the Complaint, the Court finds Plaintiff’s

allegations of race discrimination state a plausible claim for

relief. First, Plaintiff pleaded facts making it plausible that he

was qualified for his position as a blender. He was hired for the

position, completed coursework to be promoted to another position,

and provided training to other employees for his current position.

(Complaint at ¶¶ 11, 12, 14c). Second, Plaintiff has adequately

pleaded that he suffered an adverse employment action. Plaintiff

alleges he was constructively discharged. (Complaint at ¶ 30); see

Fischer v. Forestwood Co., Inc., 525 F.3d 972, 980 (10th Cir. 2008)

(“Even if an employee resigns, the plaintiff may still satisfy the

adverse employment action requirement by demonstrating that he was

constructively discharged.”). Finally, Plaintiff has sufficiently

alleged that he was treated differently from similarly situated

co-workers based on his race. He alleged that although Refresco

attended the graduations of his co-workers from ICTC, no one

attended his graduation, the attendance policy was not applied

equally for all employees, and Plaintiff’s white co-worker was

promoted to the Team Lead position even though he had not taken

the required ICTC coursework and had not been employed for the

required six months. (Complaint at ¶¶ 14d, 14f, 16, 21).

IT IS THEREFORE ORDERED that Defendant’s Combined Motion and

Memorandum of Law in Support of Motion to Dismiss (Docket Entry

#8) is hereby DENIED.

IT IS FURTHER ORDERED that Refresco shall file an answer to

the Complaint no later than AUGUST 25, 2021.

IT IS SO ORDERED this 11th day of August, 2021.

_____________________________

KIMBERLY E. WEST

UNITED STATES MAGISTRATE JUDGE