Holbert v. Thompson Industrial Service LLC

UNITED STATES DISTRICT COURT August 27, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

CORPUS CHRISTI DIVISION

JOE HOLBERT, §

§

Plaintiff, §

§

VS. § CIVIL ACTION NO. 2:24-CV-00068

§

THOMPSON INDUSTRIAL SERVICE §

LLC, et al., §

§

Defendants. §

MEMORANDUM AND RECOMMENDATION

Plaintiff Joe Holbert is appearing pro se and in forma pauperis in this employment

discrimination action. This case is subject to screening pursuant to the in forma pauperis

statute. 8 U.S.C. §§ 1915(e)(2).1

The undersigned recommends for purposes of screening that all of Plaintiff’s claims

be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) because

Plaintiff fails to state a claim on which relief may be granted. Additionally, the undersigned

1Mr. Holbert is a civilian who is not in custody. Nevertheless Section 1915(e)(2)(B) screening applies equally to

prisoner as well as non-prisoner in forma pauperis cases. See Newsome v. Equal Emp’t Opportunity Comm’n, 301

F.3d 227, 231–33 (5th Cir. 2002) (affirming dismissal of non-prisoner claims for frivolity and failure to state a claim

under § 1915(e)(2)(B)(i) and (ii)); Cieszkowska v. Gray Line New York, 295 F.3d 204, 205–206 (2nd Cir. 2002)

(affirming dismissal of in forma pauperis non-prisoner case for failure to state a claim pursuant to 28 U.S.C. §

1915(e)(2)); See also Benson v. O'Brian, 179 F.3d 1014, (6th Cir. 1999) (complaints in actions not pursued in forma

pauperis are not subject to “screening” under § 1915(e)(2)); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)

(same).

1 / 14

recommends the Court GRANT Defendant Clean Harbors Environmental’s (“Clean

Harbors”) Rule 12(b)(6) Motion to Dismiss. (D.E. 21).

I. JURISDICTION

The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This case

has been referred to the undersigned magistrate judge for case management and making

recommendations on dispositive motions pursuant to 28 U.S.C. § 636.

II. PROCEDURAL BACKGROUND

On March 13, 2024, Mr. Holbert filed his complaint pro se with an application to

proceed in forma pauperis (IFP). (D.E. 1, 2:24-mc-00045). United States Magistrate

Judge Mitchel Neurock granted the IFP application on March 14, 2024. (D.E. 2, 2:24-mc-

00045). This case was then given the above captioned civil action number and was

assigned to United States District Judge Nelva Gonzalez Ramos. Judge Ramos referred

the case to the undersigned for case management and all pretrial purposes in accordance

with 28 U.S.C. § 636. (D.E. 3). On April 3, 2024, a status conference was held at which

the undersigned cautioned Plaintiff about deficiencies in his complaint. Plaintiff was

ordered to file an amended complaint on or before May 3, 2024, and was further ordered

to submit summonses to the Clerk of Court for service. (D.E. 6). The Court received

Plaintiff’s Amended Complaint on April 26, 2024. (D.E. 7).

On May 28, 2024, Clean Harbors filed its motion to dismiss for improper service

and under Rules 12(B)(5) and 12(B)(6). Plaintiff was ordered to file a response to the

motion to dismiss on or before June 28, 2024. (D.E. 22). On June 10, 2024, Plaintiff filed

2 / 14

a response to the Clean Harbor’s motion to dismiss. (D.E. 27). Clean Harbors has filed a

reply. (D.E. 29).

On June 10, 2024, a status conference was held at which the undersigned

admonished Plaintiff that Defendant Thompson Industrial Service LLC (“Thompson

Industrial”) had not been served. The undersigned granted Plaintiff an extension and

ordered Plaintiff to complete another summons form with the proper address for service

for Thompson Industrial and to deliver it to the Clerk of Court for service on or before June

24, 2024. The undersigned further cautioned Plaintiff that unserved defendants were

subject to being dismissed for lack of service. (D.E. 28). Further, Plaintiff was also

cautioned that his complaint was still factually deficient and, therefore, he was ordered to

file a more definite statement on or before June 28, 2024. (D.E. 28). Additionally, to better

understand Plaintiff’s claims, he was also ordered to file documentation that he timely filed

a charge of discrimination with the Equal Employment Commission. (D.E. 28, p. 2).

After requesting and being granted several extensions (D.E. 30, 31, 32, 33, 34, &

35), Plaintiff filed a second “Added Amendment” (D.E. 36) which the undersigned

construes as Plaintiff’s more definite statement. Plaintiff’s “Added Amendment” (D.E. 36)

does not comply with the undersigned’s order for a more definite statement. (D.E. 28).

Plaintiff was ordered to list each defendant, explain what each defendant did to violate

Plaintiff’s rights and explain why this Court has jurisdiction. (D.E. 28). Instead, Plaintiff

filed photocopies of a legal resource which includes case summaries and general

propositions of law. Additionally, Plaintiff did not file his right to sue letter from the EEOC

3 / 14

or any other documents as ordered. Clean Harbors filed a response to Plaintiff’s “Added

Amendment” noting that Plaintiff’s pleading is almost illegible, does not comply with the

Court’s order and is devoid of any facts. (D.E. 37).

III. Plaintiff’s Claims

Plaintiff’s claims are difficult to summarize because his pleadings are unorganized

and are not set forth clearly. However, to ensure justice and access to the courts, courts

interpret pleadings of pro se litigants liberally. See United States v. Robinson, 78 F.3d 172,

174 (5th Cir. 1996) (citing United States v. Santora, 711 F.2d 41, 42 (5th Cir. 1983)). Pro

se actions will not be dismissed based on technical pleading defects and should be

construed to ensure such claims are given fair and meaningful consideration despite the

unrepresented litigant’s unfamiliarity with the law. See Haines v. Kerner, 404 U.S. 519,

520-21 (1972); See also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (Pro se parties are

normally accorded more leniency in the construction of their pleadings).

The undersigned has attempted to articulate and analyze Plaintiff’s claims in an

impartial manner consistent with providing appropriate leniency to pro se litigants while

at the same time requiring compliance with applicable pleading and screening standards.

To the extent Plaintiff is attempting to raise a claim not specifically addressed by the

undersigned in this Memorandum and Recommendation, Plaintiff has failed to state such

claim with sufficient factual detail or clarity to allow the claim to be identified, understood

or analyzed by the Court.

4 / 14

Plaintiff is a black male. He brings this action under Title VII of the Civil Rights

Act of 1964 for employment discrimination in connection with his race, color and sex. He

alleges he was wrongfully terminated from his employment. In his original complaint, he

alleges jurisdiction is conferred by Title 42 United States Code, Section 2000e-5. (D.E. 1).

Plaintiff names Thompson Industrial Service LLC as the defendant in his original

complaint. However, in his “Added Amendment” he also names the business entities Clean

Harbors Environmental and Steel Dynamic Inc. as Defendants. (D.E. 7). Plaintiff does not

clearly allege which of these entities was his employer, what the relationship is between

these entities or which entity controlled his work. Plaintiff also names several individuals

as defendants. (D.E. 7).

Plaintiff alleges the discrimination began on January 5, 2023,2 when Plaintiff and

Ernest Mungia had a verbal altercation. The altercation involved Mr. Mungia slapping

Plaintiff on the butt. (D.E. 7, pp. 5-6). On March 15, 2023, Plaintiff and Mr. Mungia were

involved in another verbal altercation regarding a job assignment. This altercation

escalated when Mr. Mungia and Michael Pena, presumably employees of Thompson

Industrial, used racial slurs against Plaintiff, including the “N” word. (D.E. 7, p. 2 & p. 7).

Over the course of the next several weeks Plaintiff and Mr. Mungia continued to have

verbal altercations, although Plaintiff does not allege these altercations involved additional

racial slurs. On August 16, 2023, Mr. Mungia used the “N’ word in front of Plaintiff

referencing a person other than Plaintiff. (D.E. 7, p. 15). Plaintiff reported Mr. Mungia’s

2Plaintiff was a new employee and January 5, 2023, was his first day on the job.

5 / 14

use of the racial slur to a supervisor on the same day. Plaintiff was later told not to report

to work the next day because there was no work. (D.E. 7, p. 16). The next day, on August

17, 2023, Plaintiff resigned from his employment with Thompson Industrial because of

racial slurs being used in the workplace. (D.E. 7, p. 16). Plaintiff further alleges Thompson

Industrial took no action against the offending employees which is not appropriate even if

Thompson Industrial considers this an isolated incident. (D.E. 7, p. 4).

IV. ANALYSIS

A. Screening Under 28 U.S.C. §§ 1915(e)(2)(B)

When a party seeks to proceed in forma pauperis the Court shall evaluate the

complaint and dismiss it without service of process if the Court finds the complaint

frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.

See 28 U.S.C. § 1915(e)(2)(B) (providing that a court shall review an in forma pauperis

complaint as soon as practicable and dismiss it if it is frivolous or malicious, fails to state

a claim upon which relief may be granted or seeks monetary relief from an immune

defendant). “In analyzing the complaint, [the Court] will accept all well-pleaded facts as

true, viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188

F.3d 322, 324 (5th Cir. 1999). “Threadbare 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). Plaintiff must allege sufficient facts in support of its legal conclusions that

give rise to a reasonable inference that Defendants are liable. Id.; Bell Atlantic Corp. v.

6 / 14

Twombly, 550 U.S. 544, 556 (2007). The factual allegations must raise Plaintiff’s claim

for relief above the level of mere speculation. Twombly, 550 U.S. at 555. As long as the

complaint, taken as a whole, gives rise to a plausible inference of actionable conduct,

Plaintiff’s claim should not be dismissed. Id.

B. Wrongful Termination

Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers

“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.”

42 U.S.C. § 2000e–2(a). To establish a prima facie case of discrimination under Title VII,

the plaintiff must show: (1) he belongs to a protected class; (2) he was qualified for his

position; (3) he suffered an adverse employment action; and (4) he was replaced by

someone outside the protected class, or that other similarly situated persons were treated

more favorably. See Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007).

In the instant case, Plaintiff has alleged he is a member of a protected class based

on his race, color and sex. While Plaintiff has alleged nothing about his qualifications,

reading Plaintiff’s complaint liberally, the undersigned construes Plaintiff’s pleading to be

that he was qualified for his position. Whether Plaintiff suffered an adverse employment

action is more difficult because Plaintiff resigned. A resignation can only constitute an

adverse employment action where that resignation amounts to a constructive discharge.

Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001). “To prove a constructive

discharge, a plaintiff must establish that working conditions were so intolerable that a

7 / 14

reasonable employee would feel compelled to resign.” Id. (internal quotation marks

omitted) (quoting Faruki v. Parsons, 123 F.3d 315, 319 (5th Cir. 1997)). “Discrimination

alone, without aggravating factors, is insufficient for a claim of constructive discharge.”

Id. In evaluating whether a reasonable employee would feel compelled to resign, a court

must consider whether the plaintiff experienced any demotions; reductions in salary or job

responsibilities; job reassignments to menial or degrading work, or to a younger supervisor;

badgering, harassment, or humiliation calculated to encourage resignation; offers of early

retirement; or continued employment on terms less favorable than the employee’s former

status. Id. (quoting Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000)). Plaintiff’s

allegations are disturbing. However, Plaintiff has not alleged sufficient facts to state a

plausible theory of constructive discharge. Plaintiff reported the racial slurs and then

resigned the next day. Plaintiff has not alleged he previously reported the abusive conduct

to management or that he gave management the opportunity to address the abusive

language of his co-workers. Plaintiff has not alleged sufficient facts to state a claim for

constructive discharge. Further, Plaintiff has not alleged he was replaced by someone

outside the protected class or that other similarly situated persons were treated more

favorably. The undersigned respectfully recommends Plaintiff’s wrongful termination

claim be dismissed.

C. Hostile Work Environment

While Plaintiff has not used the words “hostile work environment” in his pleadings

and it is unclear whether he raised such a claim before the EEOC, his complaint could be

8 / 14

construed as an attempt to raise such a claim. To establish a racially hostile work

environment claim under Title VII, the plaintiff must prove that: (1) he belongs to a

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

based on race; (4) the harassment affected a term, condition, or privilege of employment;

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

to take prompt remedial action. Williams–Boldware v. Denton Cty., 741 F.3d 635, 640 (5th

Cir. 2014). Plaintiff has not alleged any facts to suggest his employer knew or should have

known of the harassment in question. Therefore, to the extent Plaintiff is seeking to raise

a hostile work environment claim, such claim should be dismissed.

D. Sexual Harassment

In Plaintiff’s Original Complaint, he checks a box that he was discriminated against

based on sex. (D.E. 1, p. 2). Under Title VII, employers may not discharge or discriminate

against an individual based on the individual’s sex. 42 U.S.C. § 2000e-2(a)(1). The inquiry

is “whether the defendant intentionally discriminated against the plaintiff.” U.S. Postal

Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983). To establish a sexual

harassment claim based on hostile work environment, the employee must show: (1) that he

belongs to a protected class; (2) that he was subject to unwelcome sexual harassment; (3)

that the harassment was based on sex; (4) that the harassment affected a “term, condition,

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

harassment and failed to take prompt remedial action. Harvill v. Westward Comm., L.L.C.,

433 F.3d 428, 434 (5th Cir. 2005). A term, condition, or privilege of employment is

9 / 14

affected if the harassment is “sufficiently severe or pervasive to alter the conditions of

employment and create an abusive working environment.” Aryain v. Wal-Mart Stores Tex.

LP, 534 F.3d 473, 479 (5th Cir. 2008).

Plaintiff fails to provide a factual basis in any of his pleadings that would support a

claim of discrimination based on sex. The only fact alleged by Plaintiff relevant to a claim

of sexual harassment is that Mr. Mungia slapped Plaintiff on the butt at the end of a verbal

altercation. (D.E. 7, p. 5). While this single incident of unwelcome conduct is clearly

inappropriate in the workplace, Plaintiff has not alleged any facts that this conduct was

based on sex. Additionally, Plaintiff has not alleged facts to indicate this single incident

affected a “term, condition, or privilege” of employment. A single incident of this nature

does not amount to a hostile work environment. Finally, Plaintiff fails to allege his

employer knew, or should of known, of the harassment and failed to take corrective action.

Plaintiff has failed to allege a claim of discrimination based on sex, therefore, the

undersigned recommends this claim be dismissed.

E. Defendant Clean Harbors’ Motion to Dismiss

As set forth above, the undersigned recommends Plaintiff’s entire case be dismissed

on screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii). However, the Court may also

wish to address Defendant Clean Harbors’ motion to dismiss (D.E. 21), Plaintiff’s response

(D.E. 27), and Clean Harbor’s reply (D.E. 29). Clean Harbors, in its well-briefed motion

to dismiss, argues Plaintiff’s claims should be dismissed for failure to state a claim under

10 / 14

Rule 12(b)(6) of the Federal Rules of Civil Procedure.3 A dismissal made pursuant to §

1915(e)(2)(B)(ii) for failure to state a claim is reviewed under the same standard employed

for a Rule 12(b)(6) motion to dismiss. See Newsome, 301 F.3d at 231; See DeMoss v. Crain,

636 F.3d 145, 152 (5th Cir. 2011). Clean Harbors’ motion to dismiss raises the same, and

additional, reasons for dismissal as articulated by the undersigned in the analysis above.

Plaintiff’s response to the motion fails to address any of the grounds for dismissal raised

by Clean Harbors. Additionally, Plaintiff has been given an opportunity to amend his

complaint and was ordered to file a more definite statement. Plaintiff was also cautioned

that his complaint was deficient for factual insufficiency and was granted several

extensions to comply with the undersigned’s order. Finally, Defendant Clean Harbors’

motion to dismiss was filed on May 28, 2024 (D.E.21) and Plaintiff had over two months

to consider the reasons for dismissal set forth in the motion before Plaintiff filed his “Added

Amendment.” Plaintiff has pleaded his best case. While acknowledging the use of racial

slurs is unacceptable and should not be tolerated by any employer, the facts alleged by

Plaintiff do not amount to a plausible claim under Title VII. Therefore, the undersigned

recommends the Court grant Defendant Clean Harbors’ Motion to Dismiss for failure to

state a claim in accordance with Rule 12(b)(6).

F. Co-worker Defendants

In Plaintiff’s “Added Amendment” he lists the following persons: Louis Garcia,

Michael Pena, James Cabler, Ernest Mungia, George Gomez, David Wiggians, Montana

3Clean Harbors also moves to dismiss pursuant to Rule 12(b)(5) for lack of service. (D.E. 21, p. 6). However, it

appears Clean Harbors has been served. (D.E. 25).

11 / 14

Wiggians, and Matthew (LNU). (D.E. 7). The undersigned ordered Plaintiff to file a More

Definite Statement in which he lists each defendant, explains what the defendant did to

violate Plaintiff’s rights and explain why this Court has jurisdiction. (D.E. 28, p. 2).

Plaintiff has not identified clearly who these persons are or why is suing them. It is clear

to the undersigned that Mr. Mungia is a co-worker who Plaintiff alleges used racial slurs

against Plaintiff. It is probable that the other persons are also co-workers of Plaintiff or

supervisors who worked with Plaintiff. However, Plaintiff has not complied with the

Court’s Order to explain who they are or why Plaintiff is attempting to sue them.

Additionally, the undersigned cautioned Plaintiff that his claims against his co-workers

were flawed and are subject to dismissal.

Plaintiff has listed multiple individuals, along with several businesses, in his

Amended Complaint. It is unclear as to whether Plaintiff is suing the

individual Defendants in their individual and/or official capacities.

“According to the Fifth Circuit, only employers, not individuals acting in

their individual capacity who do not otherwise meet the definition of

employers, can be liable under Title VII.” White v. Royal American Mgmt.,

No. 4:23-cv-792-P, 2024 WL 2805926, at *3 (N.D. Tex. May 15, 2024)

(Dismissing individual defendants as there is no individual liability under

Title VII and Plaintiff cannot not sue both her employer and individual

defendants in their official capacities) (citations omitted).

(D.E. 28, p. 2). Plaintiff has not alleged any facts to raise a plausible claim that any of the

individual defendants are liable to him under Title VII. Therefore, the undersigned

recommends Plaintiff’s claims against Louis Garcia, Michael Pena, James Cabler, Ernest

Mungia, George Gomez, David Wiggians, Montana Wiggians and Matthew (LNU) be

dismissed.

12 / 14

V. RECOMMENDTION

The undersigned recommends for purposes of screening that all of Plaintiff's claims

be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) because

Plaintiff fails to state a claim on which relief may be granted. Additionally, the undersigned

recommends the Court GRANT Defendant Clean Harbors’ Rule 12(b)(6) Motion to

Dismiss. (D.E. 21).

ORDERED on August 27, 2024.

C Tason & Libby Z

United States Magistrate Judge

13/14

NOTICE TO PARTIES

The Clerk will file this Memorandum and Recommendation and transmit a copy to

each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of

the Memorandum and Recommendation, a party may file with the Clerk and serve on the

United States Magistrate Judge and all parties, written objections, pursuant to 28 U.S.C. §

636(b)(1)(c); Rule 72(b) of the Federal Rules of Civil Procedure; and Article IV, General

Order No. 2002-13, United States District Court for the Southern District of Texas.

A party’s failure to file written objections to the proposed findings, conclusions, and

recommendations in a Magistrate Judge’s report and recommendation within

FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon

grounds of plain error, from attacking on appeal the unobjected-to proposed factual

findings and legal conclusions accepted by the District Court. Douglass v. United Servs.

Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).

14 / 14