Powell v. Harsco Metal

DONALD R. POWELL, Plaintiff,

v.HARSCO METAL, Defendant.

Case No.: 2:12-CV-4080-VEH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE and ORDERED: June 20, 2013

MEMORANDUM OPINION AND ORDER

This employment discrimination and Alabama state law tort action was filed by the plaintiff, Donald R. Powell, against the defendant, Harsco Metals ("Harsco").¹ (Doc. 1, p. 2.) The claims are set out in several different places in the complaint. Under the heading "First Claim for Relief," the plaintiff makes a claim for race discrimination and retaliation under both Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e, et seq. ("Title VII") and 42 U.S.C. § 1981. (Doc. 1, p. 5.) Under the heading "Second Claim for Relief," the plaintiff makes an Alabama state law claim of intentional infliction of emotional distress. (Doc. 1, p. 5.) Then, in a third section of the complaint, under the heading"Nature of the Action and Relief Sought," the plaintiff also states a claim "under the common law of the State of Alabama for invasion of privacy." (Doc. 1, p. 2.) Finally, in the "Facts" section of the complaint, the plaintiff alleges that the defendant's conduct created a "hostile working environment," and that the defendant engaged in a "pattern and practice of employment discrimination based on race." (Doc. 1, p. 4.)² All of the claims arise out of the plaintiff's employment with the defendant.

The case comes before the court on the defendant's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted. (Doc. 7.) For the reasons states herein, the motion will be GRANTED in part and DENIED in part.

I. STANDARD

"[A] court should only grant a motion to dismiss [under Rule 12(b)(6)] where the defendant demonstrates that the plaintiff cannot prove any set of facts in supportof his claim which would entitle him to relief." Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). "Moreover, when ruling on a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff and accept all of the plaintiff's well-pleaded facts [and reasonable inferences drawn from those facts] as true." Id. (emphasis added). A court looks to the facts alleged in the plaintiff's complaint, and not its merely conclusory statements, when ruling on a motion to dismiss. Thus, to survive a motion to dismiss for failure to state a claim, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007) (quotations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965. Mere conclusory statements in support of a threadbare recital of the elements of a cause of action will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

II. ALLEGATIONS IN THE COMPLAINT

The plaintiff is an African American who, at the time of the events described in the complaint, was employed by the defendant. (Doc. 1, p. 2.) He began working for the defendant on April 7, 2007, in the position of "loader." (Doc. 1, p. 3.)Eventually he moved to the position of "lube man," which he held at the time of the events described in the complaint. (Doc. 1, p. 3.)

On December 7, 2011, the plaintiff and a co-worker named Mason Woods had a verbal altercation during which Woods called the plaintiff a "black mother fucker" and threatened to kill the plaintiff. (Doc. 1, p. 3.) The complaint does not state whether this occurred at work and if it occurred during work hours. The plaintiff "reported the incident to his white supervisor Bruce Anderson who advised him 'to not worry about it.'" (Doc. 1, p. 3.) The complaint does not say when the plaintiff reported the incident, what he described, or whether he told Anderson that he felt he had been the victim of discrimination.

The complaint then states that "[l]ater that evening," apparently meaning the evening of December 7, 2011, Mason Woods and his brother Matthew Woods (who the complaint implies was also employed by the defendant) physically assaulted and injured the plaintiff. (Doc. 1, p. 3.) The complaint does not state whether this occurred at work and if it occurred during work hours.

On December 8, 2011, the plaintiff was off work because of his injuries from the assault. Eddie Ishmel, the Safety Coordinator for the defendant, called Powell and told the plaintiff that he had been suspended without pay because of "the altercation." (Doc.1, p. 3.) The complaint is not specific as to whether "thealtercation" refers to the original verbal altercation or the later physical one. The plaintiff's suspension lasted for three days. (Doc. 1, p. 3.) The complaint alleges that the plaintiff was suspended "despite doing exceptionally good work and getting good reviews." (Doc. 1, p. 3.) Neither Mason Woods nor Matthew Woods was disciplined by the defendant. (Doc. 1, p. 3.)

The complaint generally alleges that the defendant has "maintained" a "pattern and practice" of discrimination against African American employees. (Doc. 1, p. 2.) The complaint generally alleges the following general examples of said pattern and practice: "showing favoritism to white employees," "subjecting black employees to harsh and unreasonable performance standards not generally applied and not consistent with applicable personnel practices and regulations," "[t]erminating, suspending or otherwise disciplining employees who [are] black while not taking such actions against white employees for the same or similar conduct," "abuse of authority by white supervisors to subject black employees to humiliation, embarrassment and invasion of . . . privacy," "[w]hite supervisors subjecting [b]lack employees to harsher discipline then accorded [white]³ employees for the same or comparable misconduct," and "[s]ubjecting black employees to pressure and coercion to abandon employment with the [d]efendant." (Doc. 1, p. 3.) The complaint citesno specific facts in support of any of this conduct.

Finally, the complaint generally alleges that the plaintiff "complained of the acts against him," but it is not specific as to whether it is referring to the discussion the plaintiff had with Anderson after the initial verbal altercation, or some other complaint. (Doc. 1, p. 4.)

III. ANALYSIS

As noted above, it appears that the complaint attempts to set out claims under Title VII, 42 U.S.C. § 1981, and Alabama state law. The defendant moves to dismiss all of these claims. They will be addressed in turn.

A. The Title VII and Section 1981 Claims

The Eleventh Circuit has explained:

Title VII prohibits employers from discriminating against any individual with respect to the terms of employment on the basis of race or sex. 42 U.S.C. § 2000e-2(a)(1). Section 1981 also prohibits discrimination in the making and enforcing of contracts based on a person's race. 42 U.S.C. § 1981(a). . . . The same analysis applies to claims for employment discrimination brought under Title VII as to those brought under § 1981.

Phillips v. Aaron Rents, Inc., 262 Fed.Appx. 202, 207 (11th Cir. 2008). The plaintiff alleges that he was treated differently from other employees when he was suspended and the Woods brothers were not. This is a "disparate treatment" claim. He also alleges that the defendant discriminated against him by creating a "hostile workenvironment," and that it retaliated against him. Further, the plaintiff alleges a pattern and practice of employment discrimination.

1. Pattern and Practice

The defendant argues that the plaintiff cannot bring a pattern and practice claim on behalf of himself alone, only on behalf of a class. (Doc. 8, pp. 9-12.) The plaintiff does not address this argument in his brief.

The Eleventh Circuit has noted:

Section 707(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a), entitles the Government to bring a pattern or practice claim on behalf of a class of similarly situated employees for declaratory and injunctive relief against an ongoing act of intentional discrimination in violation of Title VII. A pattern or practice claim for such relief may also be brought under Title VII as a class action, pursuant to Federal Rule of Civil Procedure 23(b)(2), by one or more of the similarly situated employees.

Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 964-65 (11th Cir. 2008). The instant case is neither brought by the government nor on behalf of similarly situated plaintiffs. Further, the pattern and practice allegations contain no factual support. They are mere conclusions which "are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. Accordingly, the pattern and practice claims fail.

2. Disparate Treatment

The defendant argues that the complaint should be dismissed because it "failsto state sufficient facts to establish a prima facie case under the McDonnell-Douglas framework." (Doc. 8, p. 7.)

Disparate treatment claims can be proven using direct evidence (requiring no inference or presumption) or circumstantial evidence. Id. Racial discrimination claims based on circumstantial evidence are evaluated under the McDonnell Douglas burden shifting framework. See id. To establish a prima facie case for disparate treatment in a race discrimination case, the plaintiff must show that: (1) she is a member of a protected class; (2) she was subjected to an adverse employment action; (3) her employer treated similarly situated employees outside of her protected class more favorably than she was treated; and (4) she was qualified to do the job. Id. If the plaintiff satisfies these elements, then the defendant must show a legitimate, non-discriminatory reason for

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