Comeaux v. Kleinpeter Farms Diary, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

RONELL J. COMEAUX

CIVIL ACTION

VERSUS

NO. 24-817-JWD-EWD

KLEINPETER FARMS DAIRY, LLC

RULING AND ORDER

This matter comes before the Court on Defendant’s Motion to Dismiss Brought Pursuant

to Rule 12(b)(6) (“Motion to Dismiss” or “Motion”) (Doc. 13) filed by Kleinpeter Farms Dairy,

LLC (“Defendant” or “the Dairy”). Plaintiff Ronell Comeaux (“Plaintiff” or “Comeaux”) opposes

the motion. (Doc. 19.) Defendant filed a reply. (Doc. 22.) Oral argument is not necessary. The

Court has carefully considered the law, the facts in the record, and the arguments and submissions

of the parties and is prepared to rule. For the reasons stated below, the Motion to Dismiss is granted

in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following factual allegations are taken primarily from the Complaint (Doc. 1). The

well-pled allegations are assumed to be true for purposes of this motion. In re Great Lakes Dredge

& Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010) (citing Doe v. MySpace, Inc., 528 F.3d 413,

418 (5th Cir. 2008)).

Plaintiff, an African American male, began working at the Dairy on May 3, 2023. (Doc. 1

at 2, 4.) In or around July 2023, Plaintiff began receiving comments about his race from fellow

employees. (Id. at 2.) Plaintiff’s supervisor, Korey Watson (“Watson”), called Plaintiff a “black

a__ n____” and made comments about Plaintiff’s skin tone. (Id.) Watson also said to Plaintiff:

“Good I have more work for you to do right now slave.” (Id.) McQuirter1 was present for some of

these incidents, and told Plaintiff that he would speak to Watson about the comments. (Id.)

However, Plaintiff “never heard back about the situation.” (Id.)

Plaintiff received a phone call on July 12, 2023, threatening “that he would get killed or

hurt if he kept reporting what was going on at the job site.” (Id.) Plaintiff reported this call to

Watson, but nothing was done. (Id.) Two days after this phone call, Plaintiff was followed by a

gray Honda vehicle on his way home from the Dairy. (Id.) He reported this incident to McQuirter

and Watson. (Id.) Again, nothing was done. (Id.)

On July 20, 2023, staff at the Dairy threw a birthday party in the lobby for one of Plaintiff’s

co-workers. (Id. at 2–3.) “[Plaintiff] asked why he could not attend[,] and Mr. Watson told

[Plaintiff] to pick his black bag off the desk and [that] he could not attend the party because he

was blacker than the bag.” (Id. at 3.)

On August 20, 2023, “Plaintiff was denied a two dollar raise,” which Watson said was

because Plaintiff was Black. (Id.) A few days after this incident, on August 22, 2023, Watson said

that Plaintiff had raped a co-worker. (Id.)

That day2, Plaintiff reported the incidents described above to owner Sue Ann Kleinpeter

Cox (“Cox”) and McQuirter. (Id.) Plaintiff was told that he would be fired if he told anyone else

about these incidents. (Id.) Cox told Plaintiff that “she would take care of things.” (Id.)

During the months of August and September 2023, “everyone in the plant called Mr.

Watson a stitch [sic] daily . . . .” (Id.)3 Co-workers would move the truck Plaintiff was working on

1 Plaintiff does not identify Mr. McQuirter and sometimes refers to him as “Mr. Quirter.” For purposes of this ruling,

he will be referred to as “McQuirter.”

2 Plaintiff lists this day as “August 22, 2024” (Doc. 1 at 3) but given that Plaintiff’s employment at the Dairy ended in

2023, it is likely that this is simply a typographical error.

3 Presumably Plaintiff means that Watson would, on a daily basis, call Plaintiff a snitch but this is unclear.

so that the milk would spill. (Id.) They would alter his invoices so that his orders would be wrong.

(Id.) Watson threatened Plaintiff “with bodily harm if he kept stitching [sic].” (Id.)

On September 12, 2023, Watson, McQuirter, and two other individuals confronted

Plaintiff, telling him to stop reporting what was happening. (Id.) The next day, Plaintiff’s work

order sheet contained errors, which he reported to Cox. (Id.) She did not discuss conducting any

investigation. (Id.) “[N]o one told [Plaintiff] they were looking into the allegations.” (Id. at 3–4.)

Plaintiff says that he was “constructively discharged on September 13, 2023.” (Id. at 4.)

“[P]laintiff filed a charge of discrimination with the Equal Employment Opportunity

Commission on February 7, 2024.” (Id. at 2.) He received the right to sue from the EEOC on July

2, 2024, and he filed suit on October 1, 2024. (Id.) Plaintiff asserts multiple claims: racial

discrimination, retaliation and constructive discharge, racially hostile work environment, and

racial harassment under Title VII of the Civil Rights Act of 1964 and Louisiana’s Employment

Discrimination Law (“LEDL”), Louisiana Revised Statutes § 23:332. (Id. at 4–7.)

II. RULE 12(B)(6) STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Hamilton v. Dall. Cnty.,

79 F.4th 494, 499 (5th Cir. 2023) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). “A claim has facial plausibility when the

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

defendant is liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678).

“To be plausible, the complaint’s ‘[f]actual allegations must be enough to raise a right to

relief above the speculative level.’ ” In re Great Lakes Dredge & Dock Co., 624 F.3d at 210

(quoting Twombly, 550 U.S. at 555). “In deciding whether the complaint states a valid claim for

relief, we accept all well-pleaded facts as true and construe the complaint in the light most

favorable to the plaintiff.” Id. (citing MySpace, 528 F.3d at 418. The Court does “not accept as

true ‘conclusory allegations, unwarranted factual inferences, or legal conclusions.’ ” Id. (quoting

Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007)). “A claim for relief is implausible

on its face when ‘the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct.’ ” Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th

Cir. 2011) (citing Iqbal, 556 U.S. at 679).

The Court’s “task, then, is ‘to determine whether the plaintiff has stated a legally

cognizable claim that is plausible, not to evaluate the plaintiff’s likelihood of success.’ ” Doe ex

rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (quoting

Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing

Iqbal, 556 U.S. at 678)). “[A] claim is plausible if it is supported by ‘enough fact[s] to raise a

reasonable expectation that discovery will reveal evidence of [the alleged misconduct].’ ” Calhoun

v. City of Houston Police Dep’t, 855 F. App’x 917, 919–20 (5th Cir. 2021) (per curiam) (quoting

Twombly, 550 U.S. at 556).

Additionally, “[i]n determining whether a plaintiff’s claims survive a Rule 12(b)(6) motion

to dismiss, the factual information to which the court addresses its inquiry is limited to (1) the facts

set forth in the complaint, (2) documents attached to the complaint, and (3) matters of which

judicial notice may be taken under Federal Rule of Evidence 201.” Inclusive Cmtys. Project, Inc.

v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019) (citations omitted). “Although a ‘court

may also consider documents attached to either a motion to dismiss or an opposition to that motion

when the documents are referred to in the pleadings and are central to a plaintiff’s claims,’ . . . the

court need not do so.” Brackens v. Stericycle, Inc., 829 F. App’x 17, 23 (5th Cir. 2020) (per curiam)

(quoting Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir.

2014)); see also Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (“using

permissive language regarding a court’s ability to rely on documents incorporated into the

complaint by reference”).

III. DISCUSSION

a. Parties’ Arguments

i. Motion to Dismiss (Doc. 13)

Defendant moves to dismiss Plaintiff’s claims under Federal Rule of Civil Procedure

12(b)(6). (Doc. 13-2 at 1.) It argues that Plaintiff’s allegations, other than claims related to pay,

are not adverse employment actions. (Id.) “Similarly, Plaintiff’s allegations of racial harassment,

race-based hostile work environment, and retaliation are insufficient to establish a violation of

Title VII or the LEDL as a matter of law.” (Id.)

1. Racial Discrimination

Defendant argues that Plaintiff has failed to plead “a discriminatory adverse employment

action.” (Id. at 7.) Defendant acknowledges that Plaintiff’s claim that he was denied a raise because

of his race constitutes an adverse employment action. (Id.) Although the Fifth Circuit has expanded

the definition of adverse employment action beyond the former “ultimate decision” rule,

Defendant contends that Plaintiff’s remaining allegations do not meet the current standard. (Id.)

Defendant asserts that Plaintiff’s exclusion from the birthday party is a “de minimis

workplace trifle.” (Id. at 7–8 (quoting Johnson-Lee v. Tex. A&M Univ. - Corpus Christi, 729 F.

Supp. 3d 709, 718 (S.D. Tex. 2024)).) Regarding Plaintiff’s “allegations of being called racially

derogatory names, receiving threatening phone calls, being followed home from work, or being

referred to in a derogatory way . . . [,]” Defendant argues that these are not adverse employment

actions. (Id. at 8.) He says that they do not rise to the level of a detrimental change to Plaintiff’s

terms and conditions of employment. (Id.)

2. Racial Harassment and Race-Based Hostile Work Environment

Defendant argues that Plaintiff’s “challenged conduct must be sufficiently severe or

pervasive as to create an environment that a reasonable person would find hostile or abusive

considering all the circumstances.” (Id. at 10 (quoting Beaumont v. Tex. Dep’t of Crim. Just., 468

F. Supp. 2d 907, 919 (E.D. Tex. 2006)).) It argues that Plaintiff has not shown that the alleged

conduct rose to this level. (Id.)

First, Defendant contends that some of the incidents which Plaintiff says contributed to the

racially hostile work environment were not based on his race—namely, “that [Plaintiff] allegedly

received threatening phone calls, that he was allegedly followed home from work, that he was

accused of ‘raping’ a co-worker, that his work was allegedly sabotaged, and that he was allegedly

‘cornered by an angry mob.’ ” (Id. at 10–11.) Defendant argues that Plaintiff has not adequately

pled “that these incidents occurred because of his race.” (Id.)

Next, Defendant asserts that the harassment was not severe enough to rise to the level of a

hostile work environment. (Id. at 11–12.) The actions alleged in the Complaint are not “sufficiently

severe or pervasive.” (Id. at 11.)

Whether conduct is “hostile” or “abusive” depends on the totality of the

circumstances including (1) the frequency of the discriminatory conduct, (2) its

severity, (3) whether the discriminatory conduct is physically threatening or

humiliating, or merely an offensive utterance, and (4) whether the discriminatory

conduct unreasonably interferes with an employee's work performance.

(Id. at 12 (citing Ramsey v. Henderson Postmaster Gen., 286 F.3d 264, 268 (5th Cir. 2002)).)

Defendant argues that there were only a few incidents that happened over a period of

nineteen weeks. (Id. at 12–13.) Those incidents were not severe enough to constitute a hostile work

environment. (Id. at 13.) It lists several examples of hostile work environment claims that were

rejected by the Fifth Circuit, saying that they were worse than the case here and still failed to meet

the threshold. (Id.)

3. Retaliation

Defendant first says that there is no cause of action for retaliation under the LEDL. (Id. at

14–15 (citing Monette v. Walgreen Co., No. 24-1272, 2024 WL 4528156, at *3 (E.D. La. Oct. 18,

2024)).)

Defendant then addresses Plaintiff’s Title VII Retaliation claim, arguing that the facts pled

do not amount to unlawful retaliation. (Id. at 15.) Again, it contends that Plaintiff has not shown

that these actions were “materially adverse employment actions.” (Id.) “[A]n employment decision

tends to be ‘materially adverse’ when it changes ‘job title, grade, hours, salary, or benefits’ or

effects a ‘diminution in prestige or change in standing among . . . co-workers.’ ” (Id. at 16 (quoting

Hudson v. Lincare, Inc., 58 F.4th 222, 231 (5th Cir. 2023)).)

Looking to the “final decisionmaker,” (id. (quoting Gee v. Principi, 289 F.3d 342, 346 (5th

Cir. 2002)), Defendant maintains that ordinary employees’ actions are not imputed to the employer

“unless they are conducted ‘in furtherance of the employer’s business,’ ” (id. (quoting Long v.

Eastfield Coll., 88 F.3d 300, 306 (5th Cir. 1996)).) Further, the discriminatory conduct must be

directly related to the business. (Id. (quoting Long, 88 F.3d at 306).)

Defendant asserts that, even if Plaintiff’s allegations were true, they were actions by

unknown individuals and not his employer. (Id.) It analyzes Hernandez v. Yellow Transp., Inc.,

670 F.3d 644 (5th Cir. 2012). (Id.) In that case, the Fifth Circuit found that, because the harassment

was committed by ordinary employees and not in furtherance of the business, it did not rise to the

level of retaliation. (Id. at 16–17 (citing Hernandez, 670 F.3d at 657).) Defendant argues that

Plaintiff has not shown any retaliation by the Dairy itself, or by any workers on the Dairy’s behalf,

and thus he has failed to state a retaliation claim. (Id. at 17.)

4. Constructive Discharge

Defendant argues that Plaintiff’s retaliatory constructive discharge claim fails as well. (Id.)

“To establish a claim of constructive discharge, Plaintiff must plead and prove that his working

conditions were so intolerable as a result of unlawful harassment that a reasonable person in his

position would have felt compelled to resign.” (Id. (citing Penn. State Police v. Suders, 542 U.S.

129, 141 (2004)).) Defendant points the Court to seven factors outlined by the Fifth Circuit:

(1) demotion; (2) reduction in compensation; (3) reduction in job responsibilities;

(4) reassignment to menial or degrading work; (5) reassignment to work under a

younger supervisor; (6) badgering, harassment, or humiliation by the employer

calculated to encourage the employee’s resignation; or (7) offers of early retirement

or continued employment on less favorable terms.

(Id. (citing Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297 (5th Cir. 1994)).)

Plaintiff’s allegations only go to one of these factors, harassment. (Id. at 18.) The level of

harassment must be higher than the minimum required to prove a hostile work environment claim,

and Plaintiff has not met that burden. (Id. (citing Woods v. Delta Beverage Grp., Inc., 274 F.3d

295, 300–01 (5th Cir. 2001)).) Defendant argues that the three weeks between Plaintiff notifying

Cox of the harassment and his resignation did not give Defendant a reasonable opportunity to

remedy the issue. (Id. at 18–19.) It was not reasonable for Plaintiff to resign before allowing

Defendant to fix the problem. (Id.) Therefore, Defendant argues that Plaintiff’s claims should be

dismissed.

ii. Opposition (Doc. 19)

Plaintiff argues that the document attached to the Motion (the EEOC Charge of

Discrimination) should be stricken. (Doc. 19 at 5.) This attachment is not necessary to decide the

Motion. (Id.) Plaintiff asserts that Defendant is attempting to convert the Motion into a motion for

summary judgment, which would be improper. (Id.)

1. Racial Discrimination

Plaintiff asserts that Defendant makes an “ultimate employment decision argument[,]”

which was rejected in Hamilton. (Id. at 5–6 (citing Hamilton, 79 F.4th at 501–05).) Under the new

rule, a plaintiff can succeed on a Title VII racial discrimination claim by showing “discrimination

in the terms, conditions, or privilege of employment that did not involve a discharge, loss of pay,

or other concrete effects on his or her employment status.” (Id. at 6 (quoting Hamilton, 79 F.4th at

501) (internal quotation marks omitted).) Plaintiff claims that he has done this. (Id.)

2. Racial Harassment and Race-Based Hostile Work Environment

Plaintiff argues that the allegations in the Complaint are based on “direct evidence of racial

animus due to race-based comments by his managers.” (Id.) There are four factors to determine

whether comments are direct evidence of racial animus or if they are “stray remarks”: “whether

the comments are (1) related to the plaintiff’s protected characteristic; (2) proximate in time to the

challenged employment decision; (3) made by an individual with authority over the challenged

employment decision; and (4) related to the challenged employment decision.” (Id. at 6–7 (citing

Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222 (5th Cir. 2001)).)

Watson’s comments about Plaintiff’s race and skin tone, excluding Plaintiff from the

birthday party because of his skin tone, and the denial of a raise because he was Black were all

connected to Plaintiff’s race and are direct evidence of discrimination. (Id. at 7.) Plaintiff asserts

that the actions shown by direct evidence need not be the sole basis for an adverse employment

decision. (Id. at 7–8.) “[O]nce direct evidence is presented[,] the burden shifts to the employer to

show by preponderance of the evidence the same decision would have been made without the

forbidden factor.” (Id. at 8 (citing Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C, 778 F.3d

473, 476–77 (5th Cir. 2015)).) Plaintiff cites two Fifth Circuit cases, where plaintiffs survived

summary judgment with claims similar to those made in this case. (Id. (citing Etienne, 778 F.3d at

476–77; Portis v. First Nat’l Bank of New Albany, Miss., 34 F.3d 325, 331 (5th Cir. 1994)).)

Next, Plaintiff contends that the complained of conduct was severe and pervasive. (Id.)

Rather than stray remarks or isolated incidents—as Defendant interprets them—Plaintiff faced

“months of being called racial epithets, raise and promotion being denied, jobs being sabotaged,

being excluded, and being threatened with physical violence and death.” (Id. at 9.) Plaintiff says

the cases cited by Defendant are distinguishable, because those cases dealt with a few instances

over a long period of time, not many instances within a few months. (Id. at 10.) Further, many of

Defendant’s cases were from before the Fifth Circuit’s decision in Hamilton, which marked a shift

towards lower tolerance of “egregious behavior by employers.” (Id. at 11.) Plaintiff asserts that

because everyone at the Dairy ignored the egregious behavior he was enduring, it was severe and

pervasive. (Id.)

3. Retaliation

Plaintiff argues that he does not need to show a “materially adverse employment action”

to successfully plead a retaliation claim. (Id. at 11–12.) In Hamilton, the Fifth Circuit expanded

the definition of retaliatory employment actions to include actions that affect the terms and

conditions of employment or the employment relationship. (Id. at 12 (citing Hamilton, 79 F.4th at

501–03).) Even if a materially adverse action were required, Plaintiff claims that his constructive

discharge meets that standard. (Id.) He says that the other actions alleged in the Complaint

constituted materially adverse employment actions because they dissuaded him from making a

charge of discrimination. (Id. at 12–13.)

Plaintiff argues that there is a private right of action for retaliation under the LEDL despite

the fact that the LEDL does not explicitly name retaliation as a cause of action. (Id. at 13.) Courts

disagree as to whether the LEDL includes retaliation. (Id.) Plaintiff looks to principles outlined by

the Supreme Court to support his argument. (Id.) He argues that the Supreme Court has said that

all anti-discrimination statutes contain an anti-retaliation provision, whether explicitly stated or

not. (Id. (citing Gomez-Perez v. Potter, 553 U.S. 474, 488 (2008)).) Plaintiff asserts that Louisiana

Revised Statutes § 51:2256 provides for a cause of action for retaliation related to LEDL. (Id. at

13–14.) He says that it does not matter that he did not specifically name § 51:2256 in the

Complaint, but requests leave to amend the Complaint if such citation is necessary. (Id. at 14.)

4. Constructive Discharge

“In order to establish a prima facie case of retaliation based on constructive discharge, a

plaintiff must prove that working conditions would have been [so] difficult or unpleasant, a

reasonable person in his shoes would have felt compelled to resign.” (Id. (citing Harville v.

Westwood Commc’ns, LLC, 33 F.3d 428, 439–40 (5th Cir. 2005)).) Plaintiff names the same

factors outlined above:

1. Demotion; 2. Reduction of salary; 3. Reduction of Job Responsibility; 4.

Reassignment to menial or degrading work; 5. Reassignment of work under

younger supervisor; 6. Badgering, harassment or humiliation by employer

calculated to encourage the employee’s resignation; or 7. [O]ffers of early

retirement or continued employment on terms less favorable to the employee’s

former status.

(Id. (quoting Harvill, 433 F.3d at 439–40).) “[T]he working conditions do not have to be purposely

designed to force the employee to quit.” (Id. (citing Bourque v. Powell Elec. Mfg. Co., 617 F.2d

61, 65 (5th Cir. 1980)).) Plaintiff contends that the behavior he faced satisfied factor six,

harassment. (Id. at 15.) No one would have continued working at the Dairy under these conditions.

(Id.) Therefore, Plaintiff says that his constructive discharge claim should survive the Motion to

Dismiss. (Id.)

Plaintiff argues that he gave Defendant a reasonable opportunity to address the issues he

was having. (Id.) He did not wait until September to report the harassment and discrimination. (Id.)

Rather, he reported these incidents starting in July 2023. (Id.) He first went to the CEO on August

12, 2023. (Id.) Plaintiff asserts that nothing was done about his complaints, and he faced further

harassment and bullying. (Id.) No investigation was commenced, and Plaintiff did not quit during

an investigation. (Id. at 15–16.)

Plaintiff requests leave to amend his Complaint. (Id. at 16.) He wishes to add allegations

of Defendant’s policies regarding complaints and investigations, which was included in the EEOC

position paper. (Id.)

iii. Reply (Doc. 22)

Defendant argues that the EEOC Charge attached to the Motion should not be stricken

because it “will assist the Court in deciding the merits of Plaintiff’s claims.” (Doc. 22 at 1–2.) The

EEOC charge

makes no allegations of an “angry mob,” of Mr. McQuiter’s [sic] supposed

unlawful conduct, that he made multiple reports of supposed harassment and

discrimination to Sue Anne Cox (“Ms. Cox”), that he was told he would be “fired

on the spot,” that his life was threatened, or that he was threatened in the bathroom,

as he does now.

(Id. at 2.) The EEOC charge further shows that Watson “is the same race as Plaintiff.” (Id.)

Defendant asserts that the EEOC charge is central to the Motion to Dismiss and determining the

viability of Plaintiff’s claims. (Id.) Further, no prejudice would result from the charge’s inclusion.

(Id.)

1. Racial Discrimination

Defendant next addresses Plaintiff’s interpretation of Hamilton. (Id. at 2–3.) While

Defendant acknowledges that Hamilton did away with the ultimate employment decision

requirement for Title VII disparate treatment claims, a plaintiff must still allege “workplace bias

in hiring, firing, compensation, or terms, conditions, or privileges of his employment.” (Id. at 3

(citing Hamilton, 79 F.4th at 497).) Defendant argues that Plaintiff has not pled any facts showing

that he was treated differently than those outside his protected class, which was the case in

Hamilton. (Id.) Defendant contends that Plaintiff’s allegations are speculative, because he does not

allege how his terms, conditions, or privileges of employment have been altered. (Id.)

2. Race-Based Hostile Work Environment

Defendant says that Plaintiff failed to respond to its contention that certain allegations in

the Complaint were not related to his race. (Id. at 4.) Therefore, Defendant argues, Plaintiff has

conceded that the incidents are not valid bases for a race-based hostile work environment claim.

(Id.) Plaintiff cannot not argue that his hostile work environment claims are related to race, because

his claims about phone calls, being followed home, sabotaged work, and being confronted by a

mob have nothing to do with his race. (Id. at 4–5.) Further, he did not allege facts linking the phone

call and being followed home to Defendant or its employees. (Id.)

Defendant asserts that the incidents where Plaintiff was called a racial slur and a slave and

where comments were made about his skin tone were teasing or simple comments. (Id. at 5.) They

were even made by someone within Plaintiff’s protected class, as Watson is biracial. (Id.) Plaintiff

has not alleged how these comments affected his terms, conditions, or privileges of employment.

(Id. at 6.) Therefore, his hostile work environment claim fails. (Id.)

3. Retaliation

Defendant argues that Plaintiff incorrectly applies the Hamilton standard to his retaliation

claim. (Id.) Hamilton addressed adverse employment actions in discrimination cases, not Title VII

retaliation cases. (Id. at 6–7.) The relevant standard is: “an adverse employment action, which is

one that a reasonable employee would find materially adverse, which . . . means it well might have

dissuaded a reasonable worker from making or supporting a charge of discrimination.” (Id. at 7

(quoting Hudson, 58 F.4th at 231) (cleaned up).)

The Complaint fails to allege “that Plaintiff was dissuaded from making or supporting a

charge of discrimination.” (Id.) Plaintiff was not dissuaded by the alleged sabotage or

confrontation by a mob because he went on to make another report to Cox about the behavior. (Id.)

Likewise, Plaintiff did not allege that these actions were committed by Defendant or its employees.

(Id.)

Defendant argues that some of the retaliatory actions alleged by Plaintiff occurred before

he attempted to engage in protected activity. (Id.) Plaintiff did not engage in a protected activity—

reporting the incidents to Cox—until August 22, 2023, and most of the alleged incidents happened

before that date. (Id. at 7–8.) Even the alleged sabotage of Plaintiff’s work is not alleged to have

happened after he reported the harassment. (Id. at 8.)

Plaintiff was not engaging in protected activity when he informed Watson and McQuirter

of the threatening phone calls and being followed home from work because these activities were

not prohibited by Title VII. (Id.) Plaintiff’s complaint about his lack of a pay raise was also not

protected conduct just because he was told that he did not get the raise because he was Black. (Id.)

Defendant argues that Plaintiff’s claim for retaliation under the LEDL fails because the

LEDL does not provide for retaliation claims. (Id. at 8–9.) Although Plaintiff cited in the

Opposition Louisiana Revised Statutes § 51:2256—a statute prohibiting employers from

conspiring to discriminate—Plaintiff did not allege a conspiracy. (Id. at 9.) Plaintiff should not be

given leave to amend to allege this new claim “because it is untimely and prejudicial.” (Id.)

4. Constructive Discharge

Defendant repeats its argument that many of Plaintiff’s allegations do not rise to the level

of severe or pervasive conduct. (Id.) “Here, Plaintiff conflates the alleged incidents of disparate

treatment with harassment and assumes all this amounts to a constructive discharge.” (Id.)

Harassment alone is not enough to support a claim of constructive discharge. (Id. (citing Lewis v.

Eye Care Surgery Ctr., Inc., No. 21-475, 2023 WL 8880348, at *13 (M.D. La. Dec. 22, 2023)

(Dick, C.J.)).)

Defendant concludes by saying that Plaintiff did not allege that the reports he made as early

as July 2023 reported Title VII violations or that Defendant was made aware of these reports. (Id.)

Plaintiff only gave Defendant fourteen business days from his first report to Cox until he resigned

from his position. (Id. at 10.) It was not reasonable to expect a full resolution in that time. (Id.)

Therefore, Defendant argues, Plaintiff’s constructive discharge claim should be dismissed. (Id.)

b. Law and Analysis

i. Documents Attached to Motion to Dismiss

“[M]otion[s] to strike should be granted only when the pleading to be stricken has no

possible relation to the controversy[.]” United States v. Coney, 689 F.3d 365, 379 (5th Cir. 2012)

(quoting Augustus v. Bd. of Pub. Instruction of Escambia Cnty., 306 F.2d 862, 868 (5th Cir. 1962)).

The Fifth Circuit has approved district courts’ consideration of documents attached to a motion to

dismiss, when such documents are referred to in the plaintiff’s complaint and are central to the

plaintiff’s claim. See Werner v. Dep’t of Homeland Sec., 441 F. App’x 246, 248 (5th Cir. 2011);

Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003); Collins v. Morgan Stanley Dean

Witter, 224 F.3d 496, 498–99 (5th Cir. 2000).

The EEOC charge attached to the Motion to Dismiss was referred to in the Complaint.

(Doc. 1 at 2.) The EEOC charge is central to Plaintiff’s claim because (1) it is a procedural

requirement to bring a Title VII suit, see O’Neal v. Roadway Exp., 181 Fed. App’x 417, 419 (5th

Cir. 2006), and (2) the claims in the Complaint must stem from the EEOC charge, see Young v.

City of Houston, 906 F.2d 177, 179 (5th Cir. 1990). While the EEOC charge should not be stricken,

the Court will exercise its discretion to not consider it, as there is no argument that Plaintiff’s

claims do not stem from the charge or that the Complaint was untimely.

ii. Title VII in General

Title VII makes it “an unlawful employment practice for an employer to fail or refuse to

hire or to discharge any individual, or otherwise 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[.]” 42 U.S.C. § 2000e-2(a)(1). “Title VII’s prohibition

against discrimination extends to protect against either ‘a tangible employment action, such as a

demotion or denial of promotion, or . . . a hostile or abusive working environment.’ ” Johnson v.

Bd. of Supervisors of La. State Univ., 90 F.4th 449, 455 (5th Cir. 2024) (citing Lauderdale v. Tex.

Dep’t of Crim. Just., 512 F.3d 157, 162 (5th Cir. 2007); Dediol v. Best Chevrolet, Inc., 655 F.3d

435, 440 (5th Cir. 2011)). “To establish a discrimination claim under Title VII . . . , a plaintiff must

prove that he or she was subject to an ‘adverse employment action[.]’ ” Thompson v. City of Waco,

764 F.3d 500, 503 (5th Cir. 2014) (citing Pegram v. Honeywell, Inc., 361 F.3d 272, 281–82 (5th

Cir. 2004); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006)).

“[T]o plead an adverse employment action, a plaintiff need only allege facts plausibly

showing discrimination in hiring, firing, compensation, or in the ‘terms, conditions, or privileges’

of his or her employment.” Hamilton, 79 F.4th at 502–03 (citing 42 U.S.C. § 2000e-2(a)(1); Hishon

v. King & Spalding, 467 U.S. 69, 77 (1984)). While “the statutory phrase, ‘terms, conditions, or

privileges of employment,’ is broad[,]” id. at 503, the Fifth Circuit has reiterated that Title VII

“does not permit liability for de minimis workplace trifles[,]” id. at 505 (citing Threat v. City of

Cleveland, 6 F.4th 672, 678 (6th Cir. 2021); Chambers v. D.C., 35 F.4th 870, 883, 890 (D.C. Cir.

2022); Washington v. Ill. Dep’t of Revenue, 420 F.3d 658, 660 (7th Cir. 2005)).

Plaintiff asserts his claims under Title VII and the Louisiana equivalent, the LEDL. (Doc.

1 at 4–7.) “As many courts have noted, it is well-settled that because of the substantial similarities

between state and federal anti-discrimination laws, courts may appropriately consider

interpretations of federal anti-discrimination statutes when construing Louisiana law.” Hughes v.

Exec. Hotel Mgmt., Inc., No. 22-720, 2023 WL 11820085, at *2 (M.D. La. Sept. 11, 2023)

(deGravelles, J.) (citing Johnson v. Hosp. Corp. of Am., 767 F. Supp. 2d 678, 712–13 (W.D. La.

2011); Hicks v. Cent. La. Elec. Co. Inc., 97-1232 (La. App. 1 Cir. 5/15/98), 712 So. 2d 656, 658).

iii. Racial Harassment and Race-Based Hostile Work Environment

In order to plead a hostile work environment, a plaintiff must allege that “(1) the employee

belonged to a protected class; (2) the employee was subject to unwelcome harassment; (3) the

harassment was based on the protected class; (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.” Clark v. City of Alexandria, 116 F.4th 472, 479 (5th

Cir. 2024) (quoting Bye v. MGM Resorts Int’l, Inc., 49 F.4th 918, 923 (5th Cir. 2022)). Here,

Defendant argues that Plaintiff has not sufficiently pled elements three and four. (Doc. 13-2 at 11–

14.)

1. Race-Based Harassment

Defendant argues that Plaintiff cannot rely on facially neutral actions to support his hostile

work environment claim. (Doc. 13-2 at 11–12.) The sections on hostile work environment and

harassment in the Complaint include actions that are not directly linked to Plaintiff’s race:

sabotaged work and being cornered by a mob. (Doc. 1 at 6.) In his Opposition, Plaintiff does not

address how these actions can be attributed or are attributable to his race. (Doc. 19 at 6–8.)

Therefore, the argument is waived. JMCB, LLC v. Bd. of Comm. & Indus., 336 F. Supp. 3d 620,

634 (M.D. La. Aug. 23, 2018) (deGravelles, J.) (“[F]ailure to brief an argument in the district court

waives that argument in that court.”).

The remaining grounds of harassment—being called racial slurs, being denied a raise, and

being excluded from a work event—were all linked to Plaintiff’s race. (Doc. 1 at 6.) In each

instance, Plaintiff alleges that Watson explicitly said these actions were being taken because

Plaintiff was Black or made direct comments about Plaintiff’s skin color. (Id. at 2–3.) Therefore,

these incidents are based on Plaintiff’s protected class (i.e., his race).

2. Affecting a Term, Condition, or Privilege

“To affect a term, condition, or privilege of employment, the race-based harassment must

have been ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and

create an abusive working environment.’ ” Slaughter v. Torres, 592 F. Supp. 3d 515, 528 (M.D.

La. 2022) (deGravelles, J.) (quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)).

“For harassment to alter the conditions of a person’s employment, ‘the conduct complained of

must be both objectively and subjectively offensive.’ ” Price v. Valvoline, L.L.C., 88 F.4th 1062,

1066 (5th Cir. 2023) (quoting EEOC v. WC&M Enters., 496 F.3d 393, 399 (5th Cir. 2007)).

The Supreme Court has “directed courts to determine whether an environment is

sufficiently hostile or abusive by ‘looking at 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.’ ” Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998) (citing Harris v.

Forklift Sys., Inc., 510 U.S. 17, 23 (1993)) (addressing a sexual harassment claim); see also

Arrendondo v. Elwood Staffing Servs., Inc., 81 F.4th 419, 433–35 (5th Cir. 2023) (applying the

same standards to hostile work environments based on sex and race). “ ‘[S]imple teasing,’ offhand

comments, and isolated incidents (unless extremely serious) will not amount to discriminatory

changes in the ‘terms and conditions of employment.’ ” Faragher, 524 U.S. at 788 (citing Oncale

v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)).

Plaintiff claims that he was harassed during his time at the Dairy due to his skin color.

(Doc. 1 at 6.) The harassment related to his race included: being called slurs, being denied a raise,

and being excluded from work events. (Id.) Plaintiff alleges that the harassment was so severe and

pervasive that it led to his constructive discharge. (Id.)

Plaintiff pleads that the harassing conduct was frequent. He began his employment at the

Dairy on May 3, 2023. (Doc. 1 at 2.) The harassment began in July 2023. (Id.) Plaintiff’s

supervisor, Watson, called him a “black a__ n____,” said Plaintiff’s “skin was blue/black,” and

called Plaintiff a slave on multiple occasions. (Id.) On July 2023, Watson excluded Plaintiff from

a birthday party for a fellow employee because he was “blacker than [Plaintiff’s] bag.” (Id. at 2–

3.) On August 20, 2023, Plaintiff was denied a raise, which Watson said was because of his race.

(Id. at 3.) Plaintiff resigned on September 13, 2023. (Id. at 4.) This is far from one or two isolated

incidents, and they happened in a short amount of time.

These incidents, when viewed together, are severe and humiliating. Plaintiff did not just

endure comments; he says that his work was sabotaged and that he was threatened with bodily

harm. (Id. at 3, 6.) While offhand comments are generally not enough to give rise to a hostile work

environment claim, the Fifth Circuit has recognized that even one use of the N-word can be

sufficiently severe to survive a motion to dismiss. Woods v. Cantrell, 29 F.4th 284, 286 (5th Cir.

2022). In Woods, the plaintiff’s supervisor called him a “Lazy Monkey A__ N___” in front of

other employees, which the Fifth Circuit found to be severe. Id. at 285–86. The court, quoting

other circuits, said “[p]erhaps no single act can more quickly ‘alter the conditions of employment

and create an abusive working environment’ than the use of an unambiguously racial epithet such

as the N-word by a supervisor in the presence of his subordinates.” Id. at 285 (quoting Rodgers v.

Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)) (cleaned up). While the use of

the N-word is reprehensible, other district courts have interpreted Woods not to mean that a single

use of a racial slur will “ipso facto create a hostile work environment[,]” but “that the use of a

sufficiently derogatory term is a significant (but non-determinative) consideration . . . .” Batiste v.

City of Rayne, No. 23-858, 2024 WL 3419030, at *3 (W.D. La. June 27, 2024), report and

recommendation adopted, No. 23-858, 2024 WL 2417401 (W.D. La. July 15, 2024); see also

Merida v. Bd. of Comm’rs of Se. La. Flood Prot. Auth.-E., No. 23-1992, 2024 WL 4252748, at *13

(E.D. La. Sept. 20, 2024).

Here, not only was Plaintiff called the N-word by his supervisor, in front of another

supervisor, other comments were made about his skin color, and he faced threats. (Doc. 1 at 2–3.)

Therefore, Plaintiff has pled that the harassment was severe and humiliating.

Finally, Plaintiff has sufficiently pled that the harassment interfered with his work. As

mentioned above, even one use of the N-word by a supervisor can establish a hostile work

environment. Woods, 29 F.4th at 285 (“The N-word has been further described as ‘a term that sums

up . . . all the bitter years of insult and struggle in America, [a] pure anathema to African-

Americans, [and] probably the most offensive word in English.’ ” (quoting Ayissi-Etoh v. Fannie

Mae, 712 F.3d 572, 588 (D.C. Cir. 2013) (Kavanaugh, J., concurring))). Plaintiff was also denied

a raise. (Id. at 6.) Therefore, Plaintiff has claimed that the harassment interfered with his work.

Because Plaintiff has pled that the work environment at the Dairy was sufficiently severe

or abusive, the Motion to Dismiss will be denied on this ground.

iv. Racial Discrimination

Although Plaintiff simply calls this count of his Complaint “Racial Discrimination,” the

claim seems to be one for disparate treatment. “Disparate-treatment discrimination addresses

employment actions that treat an employee worse than others based on the employee’s race, color,

religion, sex, or national origin.” Pacheco v. Mineta, 448 F.3d 783, 787 (5th Cir. 2006). Plaintiff

claims that he was denied a raise because of his race, could not attend a party because of his race,

and was called racial epithets. (Doc. 1 at 4–5.) Therefore, the Court will evaluate his claim under

the disparate treatment standard.

“In such disparate-treatment cases, proof and finding of discriminatory motive is required.”

Pacheco, 448 F.3d at 787. “A plaintiff can prove discriminatory motive through either direct or

circumstantial evidence.” Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 766 (5th Cir. 2019)

(citing Portis, 34 F.3d at 328). While the distinction between direct and circumstantial evidence

of discriminatory motive is important in determining whether to apply the McDonnell Douglas

burden-shifting framework, it is not necessary to draw such a distinction here.

The Fifth Circuit has repeatedly recognized:

the Supreme Court has distinguished the McDonnell Douglas evidentiary standard

from pleading requirements. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510–

11 [] (2002). Accordingly, “a plaintiff need not make out a prima facie case of

discrimination [under McDonnell Douglas] in order to survive a Rule 12(b)(6)

motion to dismiss for failure to state a claim.” Raj v. La. State Univ., 714 F.3d 322,

331 (5th Cir. 2013).

Id.

“A district court therefore errs by requiring ‘a showing of each prong of the prima

facie test for disparate treatment at the pleading stage[.]’ ” Id. (quoting Raj, 714

F.3d at 331). The Fifth Circuit has also explained, however, “that, although

plaintiffs do not ‘have to submit evidence to establish a prima facie case of

discrimination at this stage, [they must] plead sufficient facts on all of the ultimate

elements of a disparate treatment claim to make [their] case plausible.” Id. (quoting

Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016) (emphasis

added)).

. . .

“If a plaintiff’s disparate treatment claim depends on circumstantial evidence, he

will ‘ultimately have to show’ that he can satisfy the McDonnell Douglas

framework. Chhim, 836 F.3d at 470. 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. See, e.g., id. at 470–71 (considering whether the plaintiff pleaded facts

suggesting that the employer hired an applicant who was ‘similarly situated’ to the

plaintiff or ‘less qualified’ than the plaintiff in accordance with the McDonnell

Douglas framework).” [Cicalese, 924 F.3d at 767.]

Mitchell v. Darling Ingredients, Inc., No. 20-889, 2022 WL 458397, at *6–7 (M.D. La. Feb. 4,

2022).

To demonstrate a prima facie case of employment discrimination, [a plaintiff] must

show that [he] (1) belongs to a protected class; (2) was qualified for the position;

(3) experienced an adverse employment action; and (4) was similarly situated to

other employees who were not members of [his] protected class and who were

treated more favorably.

Id. at *6 (quoting Smith v. Nautic Star, LLC, No. 20-242, 2021 WL 2104634, at *3 (N.D. Miss.

May 25, 2021)).

Because this is a 12(b)(6) motion, “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.’ ” Cicalese, 924 F.3d at 767 (emphasis

omitted) (citing, inter alia, Raj, 714 F.3d at 331; Pacheco, 448 F.3d at 787).

“[T]o plead an adverse employment action, a plaintiff need only allege facts plausibly

showing discrimination in hiring, firing, compensation or in the ‘terms, conditions, or privileges’

of his or her employment.” Hamilton, 79 F.4th at 502–03. The Supreme Court has said that to

show an adverse employment action, “an employee must show ‘some’ harm with respect to an

identifiable term or condition of employment, but the harm need not be significant, ‘[o]r serious,

or substantial, or any similar adjective suggesting that the disadvantage to the employee must

exceed a heightened bar.’ ” O’Brien v. Autozoners, LLC, No. 23-793, 2024 WL 4838867, at *6

(E.D. La. Nov. 20, 2024) (quoting Muldrow v. City of St. Louis, 601 U.S. 346, 355–56 (2024)).

The Fifth Circuit said in Hamilton:

The [Supreme] Court has held that an adverse employment action “need only be a

term, condition, or privilege of employment.” And it has been clear that a Title VII

plaintiff may recover damages even for “discrimination in the ‘terms, conditions,

or privileges of employment’ ” that “did not involve a discharge,” “loss of pay,” or

other “concrete effect on [his or her] employment status.” Nor is Title VII’s

coverage “limited to ‘economic’ or ‘tangible’ discrimination.” This is because

Section 703(a)(1) “not only covers ‘terms’ and ‘conditions’ in the narrow

contractual sense, but ‘evinces a congressional intent to strike at the entire spectrum

of disparate treatment of men and women in employment.’ ” Any “benefits that

comprise the incidents of employment, or that form an aspect of the relationship

between the employer and employees,” the Court has explained, fall within Title

VII’s ban on discrimination.

Hamilton, 79 F.4th at 501–02 (internal citations omitted). The court went on to say:

[W]e are mindful that the statutory phrase, “terms, conditions, or privileges of

employment,” is broad. As the Supreme Court has repeatedly stated, this language,

while contractual in nature, “is not limited to ‘economic’ or ‘tangible’

discrimination,” and “it covers more than ‘terms’ and ‘conditions’ in the narrow

contractual sense.” Indeed, the Court has held that even a discriminatory and hostile

work environment—when sufficiently severe or pervasive—can rise to the level of

altering the terms, conditions, or privileges of employment for Title VII purposes.

. . . [T]he Court’s elucidation of the statutory text in [the hostile-work-environment]

context nonetheless informs our construction of the very same text for purposes of

disparate-treatment claims.

Id. at 503 (internal citations omitted).

Plaintiff claims that he was called slurs and a slave, that comments were made about the

color of his skin, and that he was denied a raise and excluded from a co-worker’s birthday party

because of his skin tone. (Doc. 1 at 4–5.) Defendant argues that—aside from his claims regarding

pay—Plaintiff has not adequately pled either prong of the disparate treatment claim. (Doc. 13-2 at

6–8.) Plaintiff does not explain how his allegations rise to the level of adverse employment actions,

says Defendant. (Id.; see Doc. 19 at 5–6.) When reading the Complaint as a whole, it is clear that

Plaintiff claims that the harassment affected the terms or conditions of his employment.

Defendant concedes that the denial of a raise constitutes an adverse employment action for

the purposes of this motion. (Doc. 13-2 at 7.) However, Plaintiff fails to adequately plead that he

suffered any other disparate treatment. The instances of Plaintiff being called racial slurs or being

excluded from a party are better addressed by a hostile work environment claim, which deals

specifically with harassment. See Clark, 116 F.4th at 479. Plaintiff does not explain how the

alleged discrimination affected terms and conditions of his employment and does not identify any

terms and conditions that were affected.

Further, Plaintiff has not pled that he was qualified for his position or that similarly situated

employees were treated better. While failing to plead these elements of the prima facie case does

not necessarily defeat Plaintiff’s claim on a motion to dismiss, failure to allege these can be helpful

to determine if he has stated a claim. Mitchell, 2022 WL 458397, at *6–7. Therefore, Plaintiff’s

claims for disparate treatment, besides those related to the denial of a raise, will be dismissed,

though leave to amend will be given.

v. Retaliation

Title VII “prohibits an employer from ‘discriminat[ing] against’ an employee or job

applicant because that individual ‘opposed any practice’ made unlawful by Title VII or ‘made a

charge, testified, assisted, or participated in’ a Title VII proceeding or investigation.” Burlington,

548 U.S. at 56 (alteration in original) (quoting 42 U.S.C. § 2000e-3(a)); see Saketkoo v. Adm’rs of

Tulane Educ. Fund, 31 F.4th 990, 999 (5th Cir. 2022). Where “a retaliation case is based on

circumstantial evidence, [courts] apply the McDonnell Douglas framework.” Brown v. Wal-Mart

Stores East, L.P., 969 F.3d 571, 577 (5th Cir. 2020) (citing Byers v. Dall. Morning News, Inc., 209

F.3d 419, 425, 427 (5th Cir. 2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

However, “a plaintiff only needs to plausibly ‘allege facts going to the ultimate elements of the

[retaliation] claim to survive a motion to dismiss.’ ” Smith v. Kendall, No. 23-50713, 2024 WL

4442040, at *4 (5th Cir. Oct. 8, 2024) (quoting Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433

(5th Cir. 2021)). “A plaintiff makes a prima facie case for retaliation by showing that ‘1) she

engaged in protected activity, 2) she suffered an adverse employment action, and 3) a causal link

exists between the protected activity and the adverse employment action.’ ” Id. at *6 (quoting

Wright¸ 990 F.3d at 433). Defendant only disputes the second element, that Plaintiff suffered an

adverse employment action. (Doc. 13-2 at 15.)

1. Adverse Employment Action

At the pleading stage, a plaintiff need only make “two basic allegations: discriminatory

conduct by the employer that leads to resignation of the employee.” Burchfield v. So. La. Med.

Assocs., No. 23-1501, 2023 WL 5952183, at *8 (E.D. La. Sept. 13, 2023) (Vance, J.) (quoting

Green v. Brennan, 578 U.S. 547, 556 (2016)). Under Title VII, a constructive discharge is

“tantamount to an actual discharge,” so it constitutes an adverse employment action. Green, 578

U.S. at 555. Constructive discharge occurs when an employee has quit her job under circumstances

that are treated as an involuntary termination of employment. Haley v. Alliance Compressor LLC,

391 F.3d 644, 649–50 (5th Cir. 2004).

Plaintiff argues that the harassment he suffered amounted to constructive discharge. (Doc.

19 at 15.) Here, Plaintiff claims that, after he reported the harassment to Cox, he was cornered by

an angry mob and was constructively discharged. Plaintiff does not state what actions by

Defendant contributed to his constructive discharge and does not link the actions of his co-workers

to the Dairy. (Doc. 1 at 5.)

“The actions of ordinary employees are not imputable to their employer unless they are

conducted ‘in furtherance of the employer’s business.’ ” Hudson, 58 F.4th at 231 (quoting

Hernandez, 670 F.3d at 657). The actions of supervisors may be imputed to the employer “where

the supervisory employees were agents of the employer with regard to the employment status of

the plaintiff.” Long, 88 F.3d at 306–07.

Plaintiff has not pled enough facts about who perpetrated the retaliation to determine if the

acts are attributable to Defendant. He alleges that Watson was his supervisor but does not describe

Watson’s role in the Dairy or state that he had the authority to make decisions about Plaintiff’s

employment. (Doc. 1 at 3.) Plaintiff does not discuss the other employees who participated in the

retaliation in detail and does not allege that any of their actions were taken in furtherance of the

Dairy’s business. Plaintiff did not identify many of the perpetrators whose actions would elevate

the harassment to the level of retaliation. Further, Plaintiff did not respond to Defendant’s

argument that the alleged retaliatory actions could not be attributed to the Dairy. Plaintiff failed to

allege that the retaliatory actions were perpetrated by his employer or by employees whose actions

could be attributed to the employer. Therefore, Plaintiff has failed to allege an adverse employment

action attributable to Defendant and thus fails to state a retaliation claim. The Motion will be

granted as to this claim, but leave to amend will be granted.

Plaintiff requests that he be given leave to amend his Complaint to add the allegation that

Defendant’s policies state that it must take corrective action within five days of a complaint. (Doc.

19 at 16.) Defendant does not address this amendment specifically, only asking that any

amendments be limited to the scope of Plaintiff’s EEOC charge. Therefore, Plaintiff will be given

limited leave to amend and add this allegation, insofar as it supports his claim for retaliation

through constructive discharge and does not add claims that do not reasonably grow out of the

EEOC charge. See McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008) (“In sum, a

Title VII lawsuit may include allegations ‘like or related to allegation[s] contained in the [EEOC]

charge and growing out of such allegations during the pendency of the case before the

Commission.’ ”).

2. Retaliation under LEDL

Previously, the LEDL did not provide for retaliation claims related to discrimination based

on race, color, religion, sex and national origin. Martin v. Winn-Dixie La., Inc., No. 13-682, 2015

WL 1281943, at *7. (M.D. La. Mar. 20, 2015) (deGravelles, J.) (citing Smith v. Par. of Washington,

318 F. Fupp. 2d 366, 373 (E.D. La. 2004)). Plaintiff’s argument that the LEDL has an implied

right of action for retaliation has been rejected by the Fifth Circuit. In Glover v. Smith, the Fifth

Circuit held that the LEDL “does not contain its own retaliation provision” in the context of racial

discrimination. 478 Fed. App’x 236, 243 (5th Cir. 2012) (quoting Lowry v. Dresser, Inc., 04-1196

(La. App. 3 Cir. 2/2/05), 893 So. 2d 966, 967).

However, the Louisiana Human Rights Act includes a statute for retaliation which, as

amended in 2014, includes the LEDL: Louisiana Revised Statutes § 51:2256. Martin, 2015 WL

1281943, at *7. This statute prohibits “conspiracy to violate human rights and discrimination

laws.” La. R.S. § 51:2256. There is some disagreement among federal district courts in Louisiana

as to whether this statute requires an actual conspiracy. Compare Lee v. City of Shreveport, No.

21-3232, 2022 WL 2161941, at *5 (W.D. La. June 15, 2022); DeJean v. Jefferson Par. Sheriff

Off., No. 22-165, 2023 WL 3434986, at *3 (E.D. La. May 12, 2023); Johnson v. Associated

Wholesale Grocers, Inc., No. 18-5919, 2019 WL 1572485, at *8 (E.D. La. Apr. 11, 2019); Martin,

2015 WL 1281943, at *7 (not requiring conspiracy for a retaliation claim under the LEDL), with

Cook v. Par. of Jefferson, 621 F. Supp. 3d 666, 673 (E.D. La. 2022); Jones v. City of Monroe, No.

19-832, 2019 WL 5488603, at *10 n.15 (W.D. La. Oct. 8, 2019) (holding that La. R.S. § 51:2256

requires a conspiracy). In Horton v. ADM, No. 22-668, 2023 WL 5663226, at *5 n.7 (M.D. La.

July 21, 2023) (deGravelles, J.), this Court declined to answer the question of whether Louisiana

Revised Statutes § 51:2256 requires a conspiracy because the Plaintiff’s claim failed on other

grounds. The Court will do the same here.

More specifically, the Court finds that Plaintiff fails to state a viable LEDL claim,

regardless of whether the statute requires a showing of a conspiracy. If, as some courts have held,

§ 51:2256 does not require a conspiracy, Plaintiff has no viable LEDL retaliation claim because

(a) Louisiana’s anti-discrimination laws are generally interpreted the same as Title VII laws, and

(b) Plaintiff fails to allege a Title VII retaliation claim. Hughes, 2023 WL 11820085, at *2. If, on

the other hand, § 51:2256 requires a conspiracy, Plaintiff’s claim fails because he did not

adequately plead a conspiracy. The Motion will be granted on this issue, though Plaintiff will be

given leave to amend.

IV. LEAVE TO AMEND

Plaintiff requests leave to amend “if the [C]ourt determines that there are not enough facts

to support any of the causes of the action . . . .” (Doc. 19 at 2.) Considering that this is the first

time the Court has ruled on a motion to dismiss the operative complaint, the Court agrees that

Plaintiff should be given leave to amend under the circumstances.

“[A] court ordinarily should not dismiss the complaint except after affording every

opportunity to the plaintiff to state a claim upon which relief might be granted.” Byrd v. Bates, 220

F.2d 480, 482 (5th Cir. 1955) (citations omitted). The Fifth Circuit has further stated:

In view of the consequences of dismissal on the complaint alone,

and the pull to decide cases on the merits rather than on the

sufficiency of pleadings, district courts often afford plaintiffs at least

one opportunity to cure pleading deficiencies before dismissing a

case, unless it is clear that the defects are incurable or the plaintiffs

advise the court that they are unwilling or unable to amend in a

manner that will avoid dismissal.

Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).

One leading treatise has further explained:

As the numerous case[s] . . . make clear, dismissal under Rule

12(b)(6) generally is not immediately final or on the merits because

the district court normally will give the plaintiff leave to file an

amended complaint to see if the shortcomings of the original

document can be corrected. The federal rule policy of deciding cases

on the basis of the substantive rights involved rather than on

technicalities requires that the plaintiff be given every opportunity

to cure a formal defect in the pleading. This is true even when the

district judge doubts that the plaintiff will be able to overcome the

shortcomings in the initial pleading. Thus, the cases make it clear

that leave to amend the complaint should be refused only if it

appears to a certainty that the plaintiff cannot state a claim. A district

court’s refusal to allow leave to amend is reviewed for abuse of

discretion by the court of appeals. A wise judicial practice (and one

that is commonly followed) would be to allow at least one

amendment regardless of how unpromising the initial pleading

appears because except in unusual circumstances it is unlikely that

the district court will be able to determine conclusively on the face

of a defective pleading whether the plaintiff actually can state a

claim for relief.

5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2016).

Here, “the Court will act in accordance with the ‘wise judicial practice’ and general rule

and grant Plaintiff’s request.” JMCB, LLC v. Bd. of Com. & Indus., 336 F. Supp. 3d 620, 641–42

(M.D. La. 2018) (deGravelles, J.); see also Fetty v. La. State Bd. of Private Sec. Exam’rs, 611 F.

Supp. 3d 230, 250 (M.D. La. Jan. 31, 2020) (deGravelles, J.) (“[B]ecause Plaintiffs did not amend

their complaint in response to a ruling by this Court, and because of the above ‘wise judicial

practice,’ the Court will grant Plaintiffs one final opportunity to amend their complaint to state

viable claims against the Board Members.”) (citing JMCB, 336 F. Supp. 3d at 641–42); Murphy v.

Bos. Sci. Corp., No. 18-31, 2018 WL 6046178, at *1 (M.D. La. Nov. 19, 2018) (deGravelles, J.)

(citing, inter alia, JMCB, 336 F. Supp. 3d at 641–42) (reaching same result).

Failure to cure the deficiencies will likely result in the dismissal of Plaintiff’s Title VII and

LEDL retaliation claims and disparate treatment claims from this Court. Specifically, if Plaintiff

fails to cure the deficiencies in his retaliation and disparate treatment claims outlined above, those

claims will be dismissed with prejudice. Although Plaintiff will be given leave to amend in light

of the “wise judicial practice” highlighted above, the Court cautions Plaintiff that, if he amends

the operative complaint to assert disparate treatment claims or retaliation claims under Title VII

and the LEDL, including any allegations about the Dairy’s policies about internal investigations,

and the Court later determines that he did so frivolously, the Court will consider an award of

sanctions against Plaintiff under Federal Rule of Civil Procedure 11.

V. CONCLUSION

Accordingly,

IT IS ORDERED that Defendant’s Motion to Dismiss Brought Pursuant to Rule 12(b)(6)

(Doc. 13) filed by Kleinpeter Farms Dairy is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that the Motion is GRANTED as to Plaintiff’s disparate

treatment claim, Title VII retaliation claim, and Louisiana Employment Law retaliation claim, and

those claims are DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff shall have twenty-eight (28) days from the

issuance of this Court’s ruling on the Motion to Dismiss in which to cure the above-described

deficiencies. If Plaintiff does not do so, the above three claims will be dismissed with prejudice.

IT IS FURTHER ORDERED that the Motion is DENIED on all other grounds.

Signed in Baton Rouge, Louisiana, on October 7, 2025.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA