Agnew v. Conagra Brands

ANDREW WILLIAM AGNEW PLAINTIFF v. CONAGRA BRANDS DEFENDANT

No. 4:21-cv-01222-LPR

United States District Court, E.D. Arkansas, Central Division

February 22, 2023

ORDER

LEE P RUDOFSKY, UNITED STATES DISTRICT JUDGE

Plaintiff Andrew Agnew alleges that defendant Conagra Brands is liable for “employment discrimination, harassment retaliation, wrongful termination[], [maintaining a] hostile work environment, and unfair[] representation, both intentional and systemic, on the basis of race, national origin, and sex ”^[1] Specifically, Mr. Agnew says that Conagra wrongfully fired him for (allegedly) sleeping on the job, took over a year to hear his case, and offered him $9,500 to not talk about the case or sue.^[2] Mr. Agnew's Amended Complaint sets forth four causes of action: (1) violations of 42 U.S.C. § 1981; (2) violations of Title VII of the Civil Rights Act of 1964; (3) violations of the “Arkansas Fair Employment and Housing Act, Government Code § 12940, et seq.”; and (4) violations of the “Arkansas Unfair Business Practices Act, Business and Professions Code Title 17 § 17-52-321 et seq.” and “Unfair Competition Law Arkansas Code § 23-66-205.”^[3]

Before the Court is Conagra's Motion to Dismiss for Failure to State a Claim.^[4] The Court GRANTS Conagra's Motion in part. Conagra is right that, as currently pled, there is not enough to make any of Mr. Agnew's claims plausible. But perhaps Mr. Agnew can fix that. The Court gives Mr. Agnew leave to amend his Complaint. If Mr. Agnew does not amend his Complaint within twenty-one days of the date of this Order, the Court will dismiss his claims against Conagra. If he does amend, the Court will entertain new motion-to-dismiss briefing.

BACKGROUND

Pro se Plaintiffs Andrew Agnew and Wanda Thompson filed their initial Complaint on November 18, 2021,^[5] and their First Amended Complaint on November 24, 2021.^[6] On December 20, 2021, the Court severed the case.^[7] Thus, the operative pleading before the Court is the Amended Complaint as it relates to Mr. Agnew.^[8]

The Amended Complaint says that Mr. Agnew is a “Caucasian male” who “worked in boiler and refrigeration at [Conagra's] Russellville, Arkansas facility in 2019.”^[9] The Amended Complaint explains that Conagra is a “national corporation headquartered in Chicago” whose “major business involves frozen food ....”^[10] The Amended Complaint asserts that Mr. Agnew was terminated on or about March 21, 2019, for allegedly sleeping on the job, that Conagra “t[ook] over a year to hear his case,” and that Conagra “offer[ed] him $9,500 if he would not talk about the case or sue.”^[11] According to the Amended Complaint, this offer to pay is tantamount to “admitting [wrongdoing] on Con[a]gra's part.”^[12] Mr. Agnew alleges that he then filed a charge of discrimination with the EEOC, and that the EEOC issued a statement that “a white man could not file a discrimination complaint, although he was treated differently.”^[13] Finally, Mr. Agnew also alleges that Conagra retaliates against employees that call organizations like OSHA and the EEOC, voids a job when an employee it doesn't want to have that job is awarded that job, “[m]andat[es] extra training when no others were made to have extra training,” “[a]sk[s] . . . hourly employees about [other] employee[s],” and talks to employees about other employees' “confidential business.”^[14]

Mr. Agnew also submitted additional materials beyond his Amended Complaint. He submitted a single-page Supplement to his Amended Complaint, which was nothing more than conclusory phrases that appear to allege that he was treated less favorably, singled out, unfairly treated, unfairly represented by his union, and retaliated against.^[15] He also attached numerous exhibits to his Opposition to Conagra's Motion to Dismiss, including emails, reports, grievance forms, Incident Summaries, Employee Warning Notices, Audiometric test results, an Arbitration Opinion, and a Settlement Agreement.^[16] However, these exhibits are not embraced by the Amended Complaint and therefore cannot be considered here.^[17]

MOTION TO DISMISS STANDARD

To survive a Rule 12(b)(6) motion, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”^[18] A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”^[19] “Factual allegations are taken to be true at the motion-to-dismiss stage because the plaintiff has not had a full opportunity to conduct discovery and thereby uncover facts that support his or her claim.”^[20] But a court need not accept “conclusory statements” or “naked assertions devoid of further factual enhancement.”^[21] A pro se complaint is construed liberally, but it must contain enough factual allegations to state a claim to relief that is plausible on its face, not merely conceivable.^[22]

DISCUSSION

As currently pled in his Amended Complaint, all of Mr Agnew's claims against Conagra fail to state viable claims.^[23] The facts alleged in his Amended Complaint are glaringly insufficient to support a claim for discrimination or retaliation, and the state laws Mr. Agnew alleges Conagra violated are either nonexistent or inapplicable.

I. Title VII

Mr. Agnew's Title VII claim has two problems. First, it is not at all clear that Mr. Agnew timely exhausted his administrative remedies with the EEOC. To bring a Title VII claim, Mr. Agnew was first required to file a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment practice.^[24] Mr. Agnew alleges that he filed a charge of discrimination with the EEOC, but he did not include a copy of the purported charge in his Amended Complaint and did not state the date that it was filed. There is no way for the Court to determine from his Amended Complaint whether the charge was appropriately filed before September 17, 2019.^[25] The Court suspects that, were this case to proceed on to summary judgment, it is likely that Conagra would have a strong affirmative defense based on lack of exhaustion.^[26]

Second, and more pressing at this stage of the litigation, Mr. Agnew's Title VII claim fails to allege facts even approaching a plausible claim. To state a prima facie case of discrimination under Title VII, a plaintiff must show that he “(1) is a member of a protected class; (2) was meeting [his] employer's legitimate job expectations; (3) suffered an adverse employment action; and (4) was treated differently than similarly situated employees who were not members of [his] protected class.”^[27] Of course, Mr. Agnew is not required to make out a prima facie case at the motion-to-dismiss stage. But the elements of a prima facie case are “part of the background against which a plausibility determination should be made.”^[28] Mr. Agnew's Amended Complaint is devoid of factual allegations suggesting discrimination. To the extent race, sex, or national origin is mentioned, it is implied in conclusory statements such as “Defendant[] discriminat[ed] against [Mr. Agnew in violation of] Title VII,” or “[D]efendant intentionally violated the rights of [Mr. Agnew] under [Title] VII.”^[29] While Mr. Agnew says that he was “treated differently,” he doesn't state clearly that he was treated differently on the basis of race, sex, or national origin.^[30] His claim is that he was fired for allegedly sleeping on the job, that Conagra took over a year to hear his case, and that Conagra offered him $9,500 if he would not talk about the case or sue.^[31] None of this-without more to connect the conduct to discriminatory motivations-states a viable claim for discrimination. If anything, the fact that he was fired for allegedly sleeping on the job suggests he was not meeting Conagra's legitimate work expectations.

II. 42 U.S.C. § 1981

Mr. Agnew's claim under 42 U.S.C. § 1981 is also deficient. First, it is unclear whether Mr. Agnew is even bringing a claim under § 1981. Under the heading for the § 1981 claim in his Amended Complaint, there is a statement in parentheses that qualifies the claim as being “on behalf of the Black American Plaintiff of the Class.”^[32] Because Mr. Agnew is Caucasian, it is not clear (and not likely) that Mr. Agnew is pleading a § 1981 claim. It is more likely this claim was part of the now-separate claims of Ms. Thompson.

Even assuming Mr. Agnew is trying to plead some kind of § 1981 claim, it is unclear whether Mr. Agnew is alleging § 1981 discrimination or § 1981 retaliation. So the Court will analyze both. The elements of a § 1981 discrimination claim are (1) membership in a protected class, (2) discriminatory intent on the part of the defendant, (3) engagement in a protected activity, and (4) interference with that activity by the defendant.^[33] The elements for retaliation under § 1981 are (1) the plaintiff engaged in protected activity, (2) the plaintiff suffered a materially adverse employment action, and (3) the materially adverse action was causally connected to plaintiff's protected activity.^[34] Importantly, to state either a § 1981 discrimination or § 1981 retaliation claim, a plaintiff must allege facts that show but-for causation.^[35] To state a § 1981 discrimination claim, a plaintiff must plead facts that show, “but for race, [he] would not have suffered the loss of a legally protected right.”^[36] And to state a § 1981 retaliation claim, a plaintiff must plead facts that show that the “desire to retaliate was the but for cause of the adverse action.”^[37]

For the same reasons as discussed in the preceding section regarding Mr. Agnew's Title VII claim, the Court concludes that Mr Agnew has not alleged any facts to...