The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ANJELICA ALATORRE, )
)
Plaintiff, )
)
v. ) Case No. CIV-21-01057-JD
)
OLE MEXICAN FOODS, INC., )
)
Defendant. )
ORDER
Before the Court is Defendant Ole Mexican Food’s (“Ole”) Motion to Dismiss
(“Motion”) [Doc. No. 14]. Ole seeks dismissal of Plaintiff Anjelica Alatorre’s
(“Alatorre”) Amended Complaint [Doc. No. 12] under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim. Alatorre responded in opposition (“Response”) [Doc.
No. 15], and Ole replied [Doc. No. 16]. For the reasons stated below, the Court grants in
part and denies in part the Motion.
I. BACKGROUND
Alatorre worked for Ole as a driver from May 2019 to August 2019. She
possessed the basic qualifications for this position. Shortly after she started, Alatorre’s
female supervisor, Diana Perez (“Perez”), began making sexual comments to Alatorre
about her appearance. Perez tried to kiss and touch Alatorre in a sexual manner. On one
occasion, Alatorre and Perez were in a vehicle together during a work trip, and Perez
pulled into a rest area and parked the car. Perez claimed she thought there was an issue
with one of the tires. When Perez and Alatorre got out, Perez grabbed Alatorre and kissed
her. The kiss was non-consensual. The day after, Alatorre reported the incident to the
warehouse manager. Ole did not investigate or take any other action. Perez continued to
make sexual advances toward Alatorre. Alatorre physically pushed her off several times.
Perez also made racist comments about Alatorre’s significant other, who is a
Black man, “including calling him a ‘n****r.’” Am. Compl. ¶ 36. Perez made fun of his
name and told Alatorre he was not welcome in the facility. Additionally, “on more than
one occasion, Perez said that she hated ‘n****rs.’” Id. ¶ 39. Alatorre also alleges that in
July 2019, a male supervisor viewed and showed other employees pornography at work.
That same day, a different male employee pinned her against a car and tried to kiss her.
Alatorre struggled to push off the other employee. A warehouse supervisor approached
and intervened. It is unclear whether this happened before or after work, or if it happened
at the warehouse.
Alatorre alleges that because she opposed sexual and racial harassment, Ole
retaliated against her by requiring her to work a 26-hour shift. Because Ole did not take
any action to remedy the sexual or racial harassment, Alatorre resigned.
Alatorre maintains she exhausted her administrative remedies with the Equal
Employment Opportunity Commission. She then filed this lawsuit.
II. LEGAL STANDARD
“Rule 12(b)(6) dismissal ‘is appropriate if the complaint alone is legally
insufficient to state a claim.’” Serna v. Denver Police Dep’t, 58 F.4th 1167, 1169 (10th
Cir. 2023) (quoting Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081,
1104–05 (10th Cir. 2017)). In considering a motion to dismiss under Rule 12(b)(6), the
inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is
plausible on its face.’” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th
Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Under this
standard, the Court accepts the truth of the plaintiff’s well-pled factual allegations and
“view[s] them in the light most favorable to the plaintiff.” Id. However, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While the 12(b)(6) standard
does not require that Plaintiff establish a prima facie case in her complaint, the elements
of each alleged cause of action help to determine whether Plaintiff has set forth a
plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).
III. ANALYSIS
Alatorre brings several employment claims under Title VII of the Civil Rights Act
of 1964 (as amended), 42 U.S.C. § 2000e, et seq. She also alleges a violation of 42
U.S.C. § 1981 for her race claims.
Under Title VII, it is “‘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.’” Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir.
2012) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
42 U.S.C. § 2000e–2(a) “prohibits discrimination on the basis of race, color,
religion, sex, and national origin ‘with respect to . . . compensation, terms, conditions, or
privileges of employment,’ and discriminatory practices that would ‘deprive any
individual of employment opportunities or otherwise adversely affect his status as an
employee.’” Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 173–74 (2011) (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006)). This provision of
Title VII is considered the “substantive antidiscrimination provision.” Id. at 173. This
provision is the basis for Alatorre’s race and sex claims for discrimination and hostile
work environment.
42 U.S.C. § 2000e–3(a) “prohibits an employer from ‘discriminat[ing] against any
of his employees’ for engaging in protected conduct.” Thompson, 562 U.S. at 174
(quoting Burlington N., 548 U.S. at 62). This is considered “Title VII’s antiretaliation
provision.” Id. This is the basis for Alatorre’s race and sex claims for retaliation.
A. Alatorre fails to sufficiently plead her claims for racial discrimination,
harassment, and retaliation under Title VII and 42 U.S.C. § 1981.
Alatorre asserts that “Ole Mexican Foods engaged in a pervasive pattern and
practice of allowing race discrimination, harassment, and/or retaliation in the workplace,
including against Alatorre.” Am. Compl. ¶ 63. She maintains that her complaint asserts
an associational discrimination claim based on race. Response at 12.1
1. Alatorre’s Racial Discrimination Claim
To satisfy the elements of a claim for discrimination, “a plaintiff must establish
that (1) she is a member of a protected class, (2) she suffered an adverse employment
action, (3) she qualified for the position at issue, and (4) she was treated less favorably
than others not in the protected class.” Khalik v. United Air Lines, 671 F.3d 1188, 1192
1 The Court uses ECF page numbering in this Order.
(10th Cir. 2012). Then, “[t]he burden [] shifts to the defendant to produce a legitimate,
non-discriminatory reason for the adverse employment action.” Id. “If the defendant does
so, the burden then shifts back to the plaintiff to show that the plaintiff’s protected status
was a determinative factor in the employment decision or that the employer’s explanation
is pretext.” Id.
When the plaintiff is not being discriminated against because of her race, she must
“point to specific facts in the record to demonstrate that [her] company knew or should
have known that [she] was harassed because of a reason that could be remedied under
Title VII, namely, [her] association with minorities.” Hernandez v. Yellow Transp., Inc.,
670 F.3d 644, 655 (5th Cir. 2012). See also Grillot v. Oklahoma ex rel. Univ. of Okla. Bd.
of Regents, No. CIV-19-241-J, 2021 WL 6101667, at *6 (W.D. Okla. July 29, 2021)
(agreeing that someone can bring a Title VII claim “‘not as a member of a racial
minority, but rather as a person who advocates on behalf of women and minorities’”
(quoting Johnson v. University of Cincinnati, 215 F.3d 561, 573 (6th Cir. 2000)));
Robinett v. First Nat’l Bank of Wichita, No. CIV. A. 87-2561-S, 1989 WL 21158, at *2
(D. Kan. Feb. 1, 1989) (“Many courts have recognized a cause of action against an
employer for discrimination due to one’s association with minorities under Title
VII . . . .”).2
2 The parties assume an associational discrimination theory by citing to other
circuit and lower court decisions that are not binding on this Court. Because the Court
concludes below that Alatorre has not stated a claim under this theory, it is not necessary
for the Court to further analyze the legal status of the associational discrimination theory
(in the context of Title VII) in the Tenth Circuit. In other words, like the parties, the
Here, Alatorre alleges discrimination not based on her race but on that of her
significant other. However, she fails to state a claim because she does not allege
sufficient facts to support a showing that she suffered adverse employment action
because of her association with minorities. “A plaintiff must prove first that [s]he was
discriminated against by h[er] employer to the point where a reasonable person in h[er]
position would have felt compelled to resign” and that she in fact resigned. Green v.
Brennan, 578 U.S. 547, 555 (2016). Although she alleges she was constructively
discharged, the racially charged interactions she had with Perez, while disrespectful, do
not plausibly show a reasonable person would have felt compelled to resign—particularly
because, when describing the number of times such exchanges occurred, Alatorre uses
conclusory language such as “on more than one occasion” so the Court does not have any
reference point for the frequency of these interactions.
2. Alatorre’s Racial Harassment/Hostile Work Environment Claim
For a hostile work environment claim, the plaintiff must allege facts that show
“‘the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment,’” Morris v. City of Colo. Springs, 666 F.3d 654,
664 (10th Cir. 2012) (quoting Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 851 (10th Cir.
2007)), and that the victim “‘was targeted for harassment because of [her] race or
national origin.’” Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir.
Court assumes the theory applies without analyzing its viability under Title VII and
binding caselaw.
2012) (quoting Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007)). The
plaintiff must show “a steady barrage of opprobrious racial comments,” “[i]nstead of
sporadic racial slurs.” Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994).
Similar to her racial discrimination claim, Alatorre brings her claim for racial
harassment based on association with her significant other who is a Black man. The facts
that Alatorre alleges, although unfortunate, do not rise to the level of plausibly alleging a
hostile work environment. She alleges that Perez made fun of her significant other’s
name and used racial slurs “on more than one occasion.” Taking these statements as true,
they still do not adequately state a hostile work environment claim because the
allegations fail to show these statements were not sporadic racial slurs. To overcome the
12(b)(6) standard, Alatorre needed to allege facts that showed Perez’s actions were
severe, abusive, and pervasive. She has not. Accordingly, Alatorre has failed to
sufficiently plead a claim for hostile work environment based on race.
3. Alatorre’s Racial Retaliation Claim
“Title VII’s anti-retaliation provision (the opposition clause) bars an employer
from discriminating against an individual who has ‘opposed any practice made an
unlawful employment practice’ by the statute.” Reznik v. inContact, Inc., 18 F.4th 1257,
1260 (10th Cir. 2021) (quoting 42 U.S.C. § 2000e-3(a)). To state a claim, Alatorre must
“plausibly allege ‘(1) that [s]he engaged in protected opposition to discrimination, (2)
that a reasonable employee would have found the challenged action materially adverse,
and (3) that a causal connection existed between the protected activity and the materially
adverse action.’” Id. (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir.
2012)). A plaintiff “need not establish that the conduct she opposed actually violated
Title VII, only that she had both a subjective good faith and objectively reasonable belief
that it did.” Id.
Here, Alatorre’s retaliation claim based on race fails because she has not alleged
facts showing that Ole took action against her that a reasonable employee would deem as
materially adverse. Although she alleges that Ole “required her to take a 26-hour shift
and unfairly disciplined” her, she does not give the Court any particulars regarding the
length of a “normal” shift, the amount or length of other employees’ shifts, or the nature
of the unfair discipline she received. She has therefore failed to state a claim for
retaliation based on race.
Because “the standards are the same” for showing a “violation of Title VII or 42
U.S.C. § 1981,” Alatorre has similarly failed to successfully plead claims under § 1981.
Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011).3
B. Alatorre sufficiently pleads her claims for sex discrimination and
hostile work environment but not retaliation based on sex under Title
VII.
Alatorre argues that she was treated less favorably than male employees who were
not sexually harassed at work. She claims that Ole discriminated against her, which
resulted in a hostile work environment and culminated in her constructive discharge.
3 The Court construes Ole’s request for dismissal of all claims on all theories to
include Alatorre’s § 1981 race claims because they rely on the same allegations and
standards. See Motion at 8 (seeking dismissal of all race-related claims); id. at 20
(seeking dismissal of “all of Plaintiff’s claims under all theories”).
1. Alatorre’s Sexual Discrimination Claim
The elements for sex discrimination are the same as race discrimination. Here,
Alatorre has successfully alleged a claim for discrimination based on sex. First, as a
woman, Alatorre is a member of a protected class. Second, she was sexually assaulted at
least two or three times by a supervisor thereby showing that she was constructively
discharged since a reasonable person in her position would have felt compelled to resign
at this point (i.e., she has suffered an adverse employment action). Third, her complaint
includes information that she was qualified for her position with Ole. Fourth, she alleges
she was sexually harassed and that male employees were not. Thus, at this stage, Alatorre
has successfully pled a claim for sexual discrimination for which Ole may be liable.
2. Alatorre’s Sexual Harassment/Hostile Work Environment Claim
Alatorre can “make out ‘a claim of sex discrimination based on a hostile work
environment’ if she can ‘show (1) that she was discriminated against because of her sex;
and (2) that the discrimination was sufficiently severe or pervasive such that it altered the
terms or conditions of her employment and created an abusive working environment.’”
Morris v. City of Colo. Springs, 666 F.3d 654, 663 (10th Cir. 2012) (quoting Pinkerton v.
Colo. Dep’t of Transp., 563 F.3d 1052, 1058 (10th Cir. 2009)). “‘[A] plaintiff must show
that the environment was both objectively and subjectively hostile or abusive.’” Id. at 664
(quoting Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir. 1998)). For this
analysis, the Court considers the “‘totality of the circumstances,’ and . . . ‘such factors as
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.’” Id. (quoting Chavez v. New Mexico,
397 F.3d 826, 832–33 (10th Cir. 2005)). Sexual assault is “conduct that clearly could be
objectively viewed as threatening and severe.” Id. at 667 (citations omitted). “‘A single
sexual assault has a far greater potential to adversely alter the work environment, and
with greater permanence, than would an offensive verbal remark, or a series of such
remarks.’” Id. (quoting Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F. Supp. 2d 953,
970 (D. Minn. 1998)).
However, “workplace harassment is not ‘automatically discrimination because of
sex merely because the words used have sexual content or connotations.’” Dick v. Phone
Directories Co., 397 F.3d 1256, 1263 (10th Cir. 2005) (quoting Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). Conduct that “can be characterized as
‘explicit or implicit proposals of sexual activity’ will support a finding that the harasser
was motivated by sexual desire.” Id. at 1264 (quoting Oncale, 523 U.S. at 80) (explaining
that this standard applies to both opposite-sex and same-sex harassers).
Here, Alatorre has pled facts sufficient to state a claim for hostile work
environment based on sex. Perez made sexual comments about Alatorre’s appearance,
kissed Alatorre without her consent, and attempted to touch Alatorre sexually to the point
that Alatorre had to push Perez off. These allegations support an inference that Perez’s
actions were motivated by sexual desire. They are also severe enough to demonstrate that
the environment would subjectively and objectively be considered abusive. Alatorre’s
complaint is not entirely clear whether the incident with the male employee who pushed
her against a car and tried to kiss her took place at work. However, given the severity of
Perez’s alleged conduct, this is not dispositive of whether Alatorre has successfully pled a
claim for relief. Although Alatorre does not enumerate how many of these encounters she
had with Perez, she alleges with great detail one instance of sexual assault in addition to
alleging that “Perez repeatedly made sexual advances toward Alatorre to the point that
Alatorre had to prepare for it daily.” Am. Compl. ¶ 32. Therefore, Alatorre has
successfully pled a claim for hostile work environment based on sex for which Ole may
be liable.
3. Alatorre’s Sexual Retaliation Claim
Because the Court has already set forth the elements of retaliation above, it will
not repeat them here. Alatorre’s retaliation claim based on sex fails for the same reasons
her retaliation claim based on race fails—she has not alleged facts showing that Ole took
action against her that a reasonable employee would deem as materially adverse.
Accordingly, she has failed to state a claim for retaliation based on sex.
IV. CONCLUSION
For these reasons, the Court concludes that Alatorre has alleged enough facts to
state claims for sexual discrimination and hostile work environment that are plausible on
their face. However, the Court determines she has not done so for her sexual retaliation
claim, or her racial discrimination, harassment/hostile work environment, and retaliation
claims, and the Court dismisses those claims without prejudice. Consequently, the Court
grants Ole’s Motion to Dismiss [Doc. No. 14] in part and denies it in part.
IT IS SO ORDERED this 6th day of November 2023.
W. DISHMAN
UNITED STATES DISTRICT JUDGE
12