# Brown v. U.S. Foods, Inc.

> District Court, M.D. Alabama · October 13, 2020

URL: https://www.frixlaw.com/law-library/cases/9977057

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** October 13, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

SCOTT BROWN, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 2:20cv06-MHT
) (WO)
U.S. FOODS, INC., et al. )
)
Defendants. )

OPINION AND ORDER

Plaintiff Scott Brown--once an employee of U.S.
Foods, Inc., a major food service distributor--filed suit
in state court naming as defendants his former employer
and several of his fellow employees, and asserting what
appears to be a litany of injuries to his dignity and
career.
Brown’s claims are all pleaded as common-law torts,
and the individual defendants he names are residents of
Alabama like him. Nonetheless, defendants removed
Brown’s operative second amended complaint to federal
court on the theory that the claims in two of the
counts--labeled “Retaliation” and “Hostile Work
Environment”--could arise under only Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 1981a

and 2000e through 2000e-17. Brown now agrees that his
complaint endeavors to state Title VII claims.
The case is before the court on defendants’ motion
to dismiss all of Brown’s claims. The court has

jurisdiction over his ostensible Title VII claims under
28 U.S.C. § 1331 (federal question) and § 2000e-5(f)(3)
(Title VII), and it has jurisdiction over his state

claims under 28 U.S.C. § 1367 (supplemental
jurisdiction). For the reasons that follow, the court
will grant the motion to dismiss, albeit with leave to
amend, as to Brown’s Title VII claims because the

allegations in his complaint fail to state a claim under
that statute. The court will also allow the parties an
opportunity to show cause why the remainder of Brown’s
complaint should not be remanded to state court.

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I. LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), a complaint “must contain
sufficient factual matter, accepted as true, to ‘state a
claim to 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, (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.

II. RETALIATION

As stated, Brown’s complaint has two counts--labeled
“Retaliation” and “Hostile Work Environment”--that he
contends state claims under Title VII. The court will
first turn to the count labeled “Retaliation.”

Title VII makes it unlawful for an employer to
retaliate against an employee or prospective employee
“because he has opposed any practice made an unlawful

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employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing
under this subchapter.” 42 U.S.C. § 2000e-3(a). Any
action by an employer that might “dissuade[] a reasonable
worker from making or supporting a charge of

discrimination” will qualify as unlawful retaliation.
Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 174 (2011)
(quoting Burlington N. & Sante Fe Ry. v. White, 548 U.S.

53, 68 (2006)).
Brown contends that his tenure at U.S. Foods was made
miserable and eventually ended because he reported to the
company’s Human Resources Department that some of his

co-workers were falsifying time sheets and absconding
with corporate property. See Second Amended Complaint
(doc. no. 1-1) at 4-6.1 The co-workers he reported are
now the individual defendants in this suit.

1. It is unclear from Brown’s filings whether the
alleged mistreatment he suffered at the hands of his co-
workers came before or after he complained to the Human
Resources Department. See Second Amended Complaint (doc.
4
Brown argues that these facts give rise to a
retaliation claim. Specifically, he alleges that he was

harassed, disciplined, and eventually terminated “in
retaliation for [his] vocalization of the improper
conduct at U.S. Foods.” Second Amended Complaint (doc.
no. 1-1) at 6. The trouble is that the “improper conduct”

he had complained about was not discrimination or other
conduct prohibited by Title VII. The facts he alleges
do not show that he was retaliated against for opposing

discrimination or for making a Title VII charge.
Instead, he alleges he was retaliated against for
reporting the theft of company property and falsification
of time sheets. See id. at 4-6.

This cannot support a retaliation claim under
Title VII. The anti-retaliation provisions of the
statute apply only when an employee is targeted for
certain protected activities, such as opposing

no. 1-1) at 3. The court has given Brown the benefit of
the doubt and assumed that the alleged mistreatment came
after he complained.
5
discrimination that is barred by the statute or making
or supporting a Title VII charge. See Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 570 U.S. 338, 347-48 (2013). The
conclusory assertion in Brown’s recitation of his claim
that he was actually retaliated against for telling the
Human Resources Department “of the hostile work

environment he was being subjected to,” id. at 21, does
not cure this deficiency, because his factual allegations
show retaliation for notifying the company that its

assets were being misused, not for, for example, charging
discrimination. Because Brown’s allegations indicate
that he was targeted for reporting his co-workers’ misuse
of company resources--not for an activity protected by

Title VII--his complaint fails to state a retaliation
claim under the statute.

III. HOSTILE-WORK ENVIRONMENT

The other count in which Brown purports to state a
Title VII claim is labeled “Hostile Work Environment.”
A plaintiff may establish a hostile-work environment by

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showing “that: (1) he belongs to a protected group; (2)
he suffered unwelcome harassment; (3) the harassment was

based on a protected characteristic of the employee ...;
(4) the harassment was sufficiently severe or pervasive
to alter the terms and conditions of employment and
create a discriminatorily abusive working environment;

and (5) the employer is responsible for that environment
under a theory of either direct liability or vicarious
liability.” Fernandez v. Trees, Inc., 961 F.3d 1148,

1153 (11th Cir. 2020). Title VII does not prohibit all
harassment: only harassment based on such factors as an
employee’s race, color, religion, sex, or national
origin.

Brown’s hostile-work environment claim falls short
because he does not adequately allege that he was
targeted for harassment due to a characteristic protected
by Title VII. While he declares that he was “subjected

to retaliation and a hostile work environment because of
his race, color and sex,” Second Amended Complaint (doc.
no. 1-1) at 5, this bare statement of a legal conclusion

7
is not sufficient to meet the pleading standards set
forth in Twombly and Iqbal. See Iqbal, 556 U.S. at 678.

Beyond that, he provides not a single factual allegation
suggesting that any of the harassment his co-workers
engaged in and U.S. Foods failed to constrain was
connected to his race, color, or sex. Because Brown’s

factual allegations do not plausibly show that the
harassment he experienced was based on a characteristic
protected by Title VII, his complaint fails to state a
hostile-work-environment claim.2

IV. INTENTIONAL DISCRIMINATION

In addition, some of the allegations in Brown’s count
labeled “Hostile Work Environment” could also be

2. It is unclear whether Brown also asserts,
separate from his retaliation claim, a retaliatory
hostile-work environment, that is, that the defendants
created a hostile-work environment in retaliation for his
having complained to the company’s Human Resources
Department. However, as stated, the mistreatment he
allegedly suffered was for complaining about his
co-worker’s misuse of company resources, and such
complaining is not protected by Title VII.
8
understood as an attempted direct claim of intentional
discrimination against U.S. Foods under Title VII, 42

U.S.C. § 2000e-2. In particular, Brown’s only factual
allegation that has anything to do with his race, color,
or sex is that:
“[T]wo African American employees ... engaged in
a physical altercation at US Foods and suffered
no punishment. Yet, US Foods attempts to falsely
justify their action here with a claim that Brown
engaged in an altercation with a co-employee.”

Second Amended Complaint (doc. no. 1-1) at 20. In his
response to the pending motion to dismiss, Brown
explained that the action U.S. Foods took based on this
‘altercation’ was a disciplinary citation for violating
the company’s Violence Prevention Policy. See Pl.’s
Response to Motion to Dismiss (doc. no. 18) at 11.
For an employment action to amount to intentional
discrimination in violation of Title VII, it must effect
a “serious and material change in the terms, conditions,

or privileges of employment.” Jefferson v. Sewon Am.,
Inc., 891 F.3d 911, 921 (11th Cir. 2018) (quoting Davis
v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir.

9
2001)) (emphasis in original). “[N]egative job
performance memoranda” and other disciplinary acts that

cause no “economic injury” are insufficient to meet this
threshold. Davis, 245 F.3d at 1240.
Brown does not allege that the disciplinary citation
he received led to his firing or to any other economic

injury. Instead, he alleges repeatedly that he was fired
for complaining about his co-workers’ alleged misuse of
company resources. Because the citation is the only

action by U.S. Foods for which Brown presents any facts
suggesting his race played a role, and because the
citation does not amount to a “serious and material
change in the terms, conditions, or privileges of

employment,” Brown fails to state a claim of intentional
discrimination under Title VII.

V. CONCLUSION

Title VII of the Civil Rights Act protects workers
from being discriminated against or subjected to
harassment for their race, color, religion, sex, or

10
national origin, and from retaliation for complaining of
such discrimination. The facts that Brown currently

alleges are that he was mistreated for reporting his
fellow workers’ misappropriation of corporate resources.
Retaliating against an employee for that reason may be
unlawful, but Title VII does not make it so. And the

disciplinary citation he allegedly received does not,
standing alone, support a Title VII claim.
In the notice of removal, defendants claimed that

Brown’s counts labeled “Retaliation” and “Hostile Work
Environment” must be read as Title VII claims because
Alabama law does not protect workers against “race or sex
discrimination, harassment, or retaliation.” Notice of

Removal (doc. no. 1) at 4. The court passes no judgment
today on whether this is true, nor whether Brown’s
current allegations in these two counts could plausibly
state any claims under Alabama law. All the court holds

is that, as plaintiffs’ complaint is now pleaded, Title
VII provides him no remedy.

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The court declines to rule on the remainder of
defendants’ motion to dismiss. The court believes it

likely that the proper course of action at this point is
to remand the state law claims remaining in plaintiff’s
suit to the state court from which they were removed.
See 28 U.S.C. § 1367(c)(3); see also Carnegie-Mellon

Univ. v. Cohill, 484 U.S. 343, 357 (1988); Myers v. Cent.
Fla. Invs., Inc., 592 F.3d 1201, 1226 (11th Cir. 2010).
However, before deciding to do so, the court will give

the parties an opportunity to show cause why this case
should not be remanded.
The court will also allow Brown to amend his
complaint to attempt to state a plausible Title VII

claim, if he so chooses. However, whether or not Brown
seeks to amend his complaint, the parties should show
cause why the case should not be remanded.
***

Accordingly, it is ORDERED that:
(1) Defendants’ motion to dismiss (doc. no. 15) is
granted as to the counts labeled “Hostile Work

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Environment” and “Retaliation” in plaintiff’s Second
Amended Complaint (doc. no. 1-1), and said counts are

dismissed without prejudice. Should plaintiff believe
that his allegations can be revised to state a plausible
claim under Title VII, the court will consider a motion
to amend his complaint filed by 5:00 p.m. on October 20,

2020.
(2) The parties should also show cause, if there be
any, in writing by 5:00 p.m. on October 20, 2020, as to

why, in the absence of plausible Title VII claims, the
state claims in this suit should not be remanded to state
court.
DONE, this the 13th day of October, 2020.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9977057. Public record. Not legal advice.