Glapion v. Saks Fifth Avenue, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DHCREEEION GLAPION * CIVIL ACTION

VERSUS * NO. 24-2232

SAKS FIFTH AVENUE, LLC * SECTION L

ORDER & REASONS

Before the Court is a 12(b)(6) motion to dismiss filed by Defendant Saks Fifth Avenue,

LLC (“Saks”). R. Doc. 11. Plaintiff Dchreeion Glapion opposes the motion. R. Doc. 17. After

considering the record, briefing, and applicable law, the Court now rules as follows.

I. BACKGROUND

This case arises out of alleged discrimination against the Plaintiff by both employees and

a customer of Defendant Saks. Plaintiff alleges that she was discriminated against and targeted

during her employment by Saks employees acting within the scope of their employment, as well

as repeatedly harassed by a customer, Terrell Cargo (“Cargo”). On May 23, 2022, Plaintiff was

hired by Saks as a sales associate working on a commission basis. R. Doc. 1 at 2. She alleges that

four months after she was hired by Saks, her male coworkers began discriminating against her by

preventing her from selling to certain store patrons, claiming they were exclusively the male

colleagues’ customers. Id. at 2-3. Additionally, on November 27, 2022, Plaintiff discovered that a

coworker had posted a disparaging video of the Plaintiff in which they called her a “goofy goober.”

Id. at 3. Plaintiff claims she reported this behavior to management, but no remedial action was

taken. Id. Further, Plaintiff claims that on June 5, 2023 a male colleague called her a “Black Bitch”

after she inadvertently got a key stuck in a merchandise case. Id. at 4. Plaintiff reported this incident

to management, but they again took no remedial action. Id.

In addition to the conduct by employees of Saks, Plaintiff alleges several instances of

sexual harassment by a customer, Cargo, over an 18-month period. Id. at 3-6. Plaintiff alleges that

Cargo pulled the Plaintiff into a dressing room and attempted to kiss her, frequently visited the

store to watch the Plaintiff work, followed the Plaintiff inside and immediately outside of the store,

and grabbed her arm while saying “Happy Mother’s Day Slim.” Id. After each incident with Cargo,

Plaintiff reported his behavior to store management. Id. Plaintiff alleges that her manager

instructed her to leave the store or take her lunch break if she saw Cargo again. Id at 3. Plaintiff

claims that she would therefore be unable to make commissions when Cargo was present. Id.

Throughout the course of the alleged harassment, Plaintiff alerted the Defendant by telling her

manager, sending a picture of Cargo to Asset Protection, and reporting the history of his behavior

to human resources. Id. at 3-4. Approximately 11 months after the Plaintiff first reported an issue

with Cargo, she filed a police report. Id. at 5. About two months after the Plaintiff filed the police

report, she again met with management to discuss the issues with the customer. Id. Plaintiff avers

that management told her she needed “more than a police report” to keep Cargo from entering the

store and that she would have to file a restraining order. Id. Plaintiff claims that she was forced to

take a one-month leave because she was depressed and afraid for her safety. Id. Cargo continued

to enter the store until Plaintiff’s termination. Id.

Following the Plaintiff’s period of leave, she returned to Saks. Id. Upon her return, Plaintiff

claims that she received conflicting information about where in the store she was allowed to make

sales and that male associates were allowed to work in certain areas that she was not. Id. at 5.

Plaintiff reported the behavior of her male coworkers to the Saks ethics hotline. Id. at 6. On June

8, 2024, Plaintiff was terminated allegedly because she entered an area of the store designated to

certain male colleagues and assisted their clients. Id. Plaintiff attests that the cause given for her

termination was pretextual as other male associates were able to enter any area of the store to assist

customers. Plaintiff believes she was actually terminated for filing the police report and

complaining about the sexual harassment to her supervisors. Id. On June 13, 2024, Plaintiff filed

an EEOC Charge of Discrimination against Defendant and received a Right to Sue letter. R. Doc.

11-3 at 1.

Plaintiff brings claims for discrimination, hostile work environment based on sex,1 as

well as retaliation pursuant to Title VII and the Louisiana Employment Discrimination law.2 R.

Doc. 1 at 9. Plaintiff also brings negligence claims pursuant to Louisiana Civil Code Article 2315.

Id. at 10.

II. PRESENT MOTION

Defendant Saks seeks dismissal of two of the Plaintiff’s claims: (1) retaliation and (2)

hostile work environment on the basis of sex. First, Saks asserts that Plaintiff did not adequately

exhaust her administrative remedies as to the retaliation claims because she failed to provide

sufficient facts in her EEOC Charge of Discrimination. R. Doc. 11-1 at 3. Second, Saks alleges

that Plaintiff cannot meet the necessary elements to bring a hostile work environment claim under

Title VII or the LEDL. Id. at 5. In opposition, Plaintiff asserts that the EEOC charge must be

liberally construed for litigation purposes. Id. at 6-7. She also summarizes the allegations of the

harassment and retaliation made in the complaint, arguing that they meet the federal pleading

standards. Id. at 9-15.

Defendant also argues that Plaintiff’s negligence claims under Louisiana Civil Code article

2315 are barred by the Louisiana Workers’ Compensation statute, 11-1 at 11-12. Plaintiff

1 While the EEOC charge mentions discrimination on the basis of race, Plaintiff does not mention race-based

discrimination in her Complaint. Defendant notes this out in its motion to dismiss, arguing that Plaintiff seems to

have abandoned her race-based claims. R. Doc. 11-1 at 3. Plaintiff does not refute this point in her opposition, nor

does she argue that she brings claims on the basis of race.

concedes this in her opposition and withdraws the claims. R. Doc. 17 at 17. Accordingly, the Court

will dismiss these claims.

III. APPLICABLE LAW

Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for

failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To 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 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)). “Factual allegations must be enough to

raise a right to relief above the speculative level.” Twombly, 550 U.S. at 556. A claim is plausible

on its face when the plaintiff has pled facts that allow the court to “draw a reasonable inference

that the defendant is liable for the misconduct alleged.” Id. at 570. Although a court must liberally

construe the complaint in light most favorable to the plaintiff, accept the plaintiff’s allegations as

true, and draw all reasonable inferences in favor of the plaintiff, Baker v. Putnal, 75 F.3d 190, 196

(5th Cir. 1996), courts “do not accept as true conclusory allegations, unwarranted factual

inferences, or legal conclusions.” Arias-Benn v. State Farm Fire & Cas. Co., 495 F.3d 228, 230

(5th Cir. 2007) (quoting Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)).

IV. ANALYSIS

The Defendant seeks dismissal of Plaintiff’s retaliation and her hostile work environment

claim. The Court takes these issues in turn.

A. Title VII Retaliation Claims

First, the Court will address Plaintiff’s retaliation claims under Title VII and LEDL. 3 “To

3 The Fifth Circuit has previously noted that due to the substantive similarities between the Louisiana and federal

retaliation statutes, the outcome of such claims will be the same under both statutes. Accordingly, this Court – like

other courts have done in the past – will address the Plaintiff’s retaliation claims under the federal law. McCoy, 492

F.3d at 556 n. 4 (analyzing plaintiff’s retaliation claim “only under the applicable federal precedents” because

“Louisiana’s anti-discrimination statute . . . is ‘substantively similar’ to Title VII” such that “the outcome of

establish a prima facie case of retaliation, the plaintiff must establish that: (1) he participated in an

activity protected by Title VII [or the LEDL]; (2) his employer took an adverse employment action

against him; and (3) a causal connection exists between the protected activity and the adverse

employment action.” McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).

Retaliation claims are analyzed under the same burden-shifting framework as discrimination

clams: “If the employee establishes a prima facie case, the burden shifts to the employer to state a

legitimate, non-retaliatory reason for its decision. Id. After the employer states its reason, the

burden shifts back to the employee to demonstrate that the employer’s reason is actually a pretext

for retaliation.” Feist v. Louisiana, 730 F.3d 450, 454 (5th Cir. 2013) (citing LeMaire v. Louisiana,

480 F.3d 383, 388-89 (5th Cir. 2007)). “At this stage, Plaintiff does not need to make out a prima

facie case for retaliation to survive a 12(b)(6) motion.” Thompson v. Houma Terrebonne Hous.,

2019 WL 2524591, at *3 (E.D. La. 2019). At the pleading stage, the plaintiff instead “must plead

sufficient facts on all of the ultimate elements of a disparate treatment [or retaliation] claim to

make his case plausible.” Id. (internal quotations omitted).

Further, Title VII requires that before a plaintiff brings a lawsuit for discrimination, she

must exhaust her administrative remedies by filing a “charge” with the EEOC. Jones v. City of

Houston, 756 F. App’x. 341, 348 (5th Cir. 2018). The Court looks at the facts alleged in the EEOC

charge and determines if the Title VII lawsuit arises from those facts. McClain v. Lufkin Industries,

Inc., 519 F.3d 264, 273 (5th Cir. 2008). To determine whether a plaintiff has administratively

exhausted her claim, the scope of the EEOC charge is liberally construed. Patton v. Jacobs Eng’g

Group, Inc., 874 F.3d 437, 443 (5th Cir. 2017). A court must “‘interpret[] what is properly

embraced in review of a Title-VII claim somewhat broadly, not solely by the scope of the

[plaintiff’s] . . . retaliation claims will be the same under the federal and state statutes.”) (quoting Trahan v. Rally’s

Hamburgers, Inc., 696 So. 2d 637, 641 (La. App. 1st Cir. 1997).

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

expected to grow out of the charge of discrimination.’” Id. (quoting Pacheco, 448 F.3d at 789).

This requires courts to “engage in a fact-intensive analysis of the statement given by the plaintiff

in the administrative charge, and look slightly beyond its four corners, to its substance rather than

its label.” Id.

Defendants argue that Plaintiff failed to exhaust her administrative remedies because she

did not allege enough facts to support a retaliation claim in her EEOC charge. The Court disagrees.

In Plaintiff’s EEOC charge, she asserts that she “believe[s] [she] has been discriminated against

because of [her] . . . sex-female; and retaliated against in violation of Title VII of the Civil Rights

Act of 1964, as amended.” R. Doc. 11-3 at 2. The Court finds that her charge included facts in

support of this claim.

In her EEOC charge, Plaintiff alleges that she engaged in potentially protected Title VII

activity. An employee has engaged in protected activity if she has “(1) opposed any practice made

an unlawful employment practice by the statute, or (2) made a charge, testified, assisted, or

participated in any manner in a Title VII investigation, proceedings, or hearing.” Alleman v.

Louisiana, 698 F. Supp. 2d 644, 663-64 (M.D. La. 2010). Plaintiff states in the EEOC charge that

after being sexually harassed by Cargo, she “filed a police report” in November of 2023. Other

courts have held that filing a police report can constitute protected activity for Title VII purposes.

In Miller v. Madison County Board of Commissioners, the court denied summary judgment for the

employer, holding that the employee engaged in protected Title VII activity by reporting sexual

harassment to the police and her supervisor. Miller v. Madison Cnty. Board of Comm’rs, 2023 WL

2837867, at *9 (S.D. Ind. Apr. 7, 2023); see also Worth v. Tyer, 276 F.3d 249, 265 (7th Cir. 2001)

(finding that “a plaintiff that reports such [sexual harassment] to the police clearly “opposes” it

within the meaning of 42 U.S.C. § 2000e–3(a)”); Wiseman v. Autozone, Inc. 819 F. Supp. 2d 804,

819 (N.D. Ind. 2011) (noting that the employer made a “wise concession” that filing a police report

is protected Title VII activity); Garcia v. Yonkers Board of Educ., 188 F. Supp. 3d 353, 361

(S.D.N.Y. 2016) (same).

Plaintiff alleges that she filed a police report in response to sexual harassment she

experienced in the scope of her employment and that she met with her managers to discuss the

police report and request remedial actions. Thus, she sufficiently pled that she engaged in Title VII

protected activity and satisfied the first element of a retaliation claim. While the Court certainly

does not hold that Plaintiff’s filing of a police report is definitively protected Title VII activity, the

Court find that her allegation is sufficient to meet federal pleading standards.

Furthermore, Plaintiff alleges she was fired because she filed a police report, which

constitutes an adverse action and satisfies the second element of a retaliation claim. See DeHart v.

Baker Hughes Oilfield Operations, Inc., 214 F. App’x. 437, 442 (5th Cir. 2007) (“termination is

clearly an adverse employment action”). Finally, Plaintiff in her complaint alleges a causal

connection between the protected activity and the adverse action. “To demonstrate the third

element of a prima facie case of retaliation—a causal connection between the protected activity

and the adverse action—a plaintiff must demonstrate that the employer's decision “was based in

part on knowledge of the employee’s protected activity.” Lyons v. Katy Indep. Sch. Dist., 964 F.3d

298, 305 (5th Cir. 2020) (internal quotations omitted). Here, Plaintiff alleges that she made her

supervisors aware of the police report she filed against Cargo and was ultimately terminated.

Accepting the Plaintiff’s well-pled complaint as true, the court infers a causal connection at this

stage in the proceedings. Accordingly, the Court does not agree with Defendant that Plaintiff has

failed to adequately exhaust her administrative remedies as to her retaliation claim.

B. Title VII Hostile Work Environment Claim

To state a claim for hostile work environment, Plaintiff must allege that (1) she belongs to

a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based

on protected status; (4) the harassment affected a term, condition, or privilege of employment; and

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

action. Hernandez v. Yellow Transp., Inc., 641 F.3d 118, 125 (5th Cir. 2011) (citing Ramsey v.

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

Workplace harassment affects a term, condition, or privilege of employment when it is

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

abusive working environment.” Hernandez, 670 F.3d at 651 (quotations omitted). This standard

does not require a “tangible psychological injury,” but it does necessitate more than a “mere

utterance of an . . . epithet which engenders offensive feelings in a[n] employee.” Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67

(1986)). To determine whether the conditions of employment have been altered to the extent that

the workplace has become “hostile,” courts consider the totality of 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.” Hernandez, 670 F.3d at 651 (quoting Ramsey, 286 F.3d at 268).

“A single incident of harassment may be sufficiently severe to give rise to a claim in some

instances, while a continuous pattern of much less severe incidents of harassment may be pervasive

enough to violate Title VII in other cases.” Illinois Cent. R.R. Co. v. Brotherhood of Locomotive

Eng’rs and Trainmen, 505 F. Supp. 3d 626, 633 (E.D. La. 2020). In addition, “the work

environment must be ‘both objectively and subjectively offensive, one that a reasonable person

would find hostile or abusive, and one that the victim in fact did perceive to be so.’” Id. (quoting

Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).

While Defendant concedes that Plaintiff is a member of a protected class, it argues that she

is unable to meet the remaining four elements needed to bring a hostile work environment claim

on the basis of sex. Overall, Defendant argues that the conduct Plaintiff alleges was not severe or

pervasive enough to constitute a hostile work environment. It cites examples of cases where courts

granted summary judgment for the employer where the conduct was not severe or pervasive

enough. In one cited case, unwanted touching by a co-worker on one occasion and comments of a

graphic and sexual nature over a period of six months were not sufficient. Guidry v. Zale

Corporation, 969 F. Supp. 988 (M.D. La. 1997).

However, factual considerations available at the summary judgment stage are not available

on a 12(b)(6) motion in which the Court looks only to the pleadings. In the Plaintiff’s complaint,

she alleges both ongoing harassment by coworkers and isolated incidents of gender-based

comments including being called a “Black Bitch” by a male coworker, discovering a disparaging

video of herself posted online by a colleague, and not being allowed to sell in certain areas of the

store.

Furthermore, Plaintiff also alleges harassment by a customer, Cargo. It is well-established

in the Fifth Circuit that a customer’s behavior can give rise to a cause of action for a hostile work

environment if the employer was aware of that behavior and allowed it to continue. See Gardner

v. CLC of Pascagoula, LLC, 915 F.3d 320, 321-322 (5th Cir. 2019) (“Because the ultimate focus

of Title VII liability is on the employer’s conduct—unless a supervisor is the harasser, a plaintiff

needs to show that the employer knew or should have known about the hostile work environment

yet allowed it to persist[.]”). For example, in Sansone v. Jazz Casino Company, LLC, a casino

employee was sexually harassed by a customer at least twice a week over a three-month period

while operating a baccarat table. 2021 WL 3919249, at *1 (5th Cir. Sept. 1, 2021). Throughout the

three-month period, the employee reported the customer’s behavior to her supervisors but felt her

claims were never adequately addressed. Id. at *4. The Fifth Circuit reversed this Court’s grant of

summary judgment for the employer on the issue of hostile work environment, finding that genuine

issues of material fact existed as to whether the employee adequately reported the behavior and if

the employer responded appropriately. /d. Here, likewise, Plaintiff alleges several instances of

sexual harassment by Cargo, including the incident in which he attempted to kiss her, grabbed her

arm, and stalked her. Plaintiff alleges that she reported this behavior to her employer through

meetings with her supervisors, contacting asset protection, and reporting her history with Cargo to

human resources and nothing was done to prevent this behavior.

Overall, considering the behavior by Plaintiffs coworkers and Cargo, she has stated a

viable claim for hostile work environment. Although Defendant contends that the behavior by

Saks’ employees or Cargo was not severe or pervasive enough to constitute a hostile work

environment, this is a factual dispute inappropriate for a resolution on a 12(b)(6) motion.

CONCLUSION

Considering the foregoing;

IT IS HEREBY ORDERED that Saks Fifth Avenue, LLC’s 12(b)(6) Motion to Dismiss,

R. Doc. 11, is granted in part and denied in part. The motion is GRANTED in that Plaintiff's

negligence claims arising under Louisiana Civil Code Article 2315 are dismissed, as Plaintiff

concedes. Otherwise, the motion is DENIED as to all other claims.

New Orleans, Louisiana, this 12th day of February, 2025.

Dy Cor

HONORABLE ELDON E. FALLON

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