United States District Court, E.D. Louisiana
ANDY C. OLMEDA,
CAMERON INTERNATIONAL CORPORATION, ET AL., Section
ORDER AND REASONS
MARTIN L. C. FELDMAN, District Judge.
Before the Court is PMG, Inc.'s Rule 12(b)(6) motion to dismiss. For the reasons that follow, the motion is GRANTED in part and DENIED in part.
This lawsuit arises from allegations that, after complaining to his employers that he was the target of racial harassment and death threats by white male co-workers and supervisors, the plaintiff, who is of Spanish descent, was fired the day after he complained that the same co-worker and supervisor followed him from work and shot at him while he drove away in his car.
At this stage of the proceedings, the Court takes as true the allegations in the complaint. Andy C. Olmeda was hired in May 2013 to work as a machinist for Cameron International Corporation in St. Mary Parish. PMG, Inc. received a commission for supplying employees like Mr. Olmeda to Cameron. While he worked at Cameron, Mr. Olmeda complained to both Cameron and PMG that he was subject to racial harassment at work. In particular, Mr. Olmeda was perceived as Mexican by some co-workers and supervisors. Two of his co-workers or supervisors, both white males, named Scott Carrington and Billy Perez called Mr. Olmeda a "Beaner" (a derogatory word for someone of Mexican descent) and a "stupid f____king Mexican" and "constantly made gross, outrageous, humiliating racial comments about" Mr. Olmeda. Neither Cameron nor PMG had any antidiscrimination or retaliation policy, or, at least, did not advise or train their employees with respect to any such policy.
In addition to being a target of harassment, Mr. Olmeda also received death threats from Carrington, who while at work drafted and circulated a list entitled "10 Ways to Kill Andy". The death threats escalated in the early morning of September 14, 2013: when Olmeda left work in his car, he was followed in a truck driven by Perez with Carrington riding as passenger; as they drove by, Carrington fired at Olmeda's car with a shotgun, riddling his car with bullets, damaging his car, and causing Olmeda distress. The next day, after Mr. Olmeda reported the incident, his employment was terminated, even though he had never received any write-ups or negative performance evaluations. Cameron and PMG allegedly fired Mr. Olmeda because they did not want him working there and could not protect him.
On February 25, 2014 Mr. Olmeda filed a charge of national origin discrimination and retaliation with the EEOC; he alleged that he complained daily to supervisors and human resources, to no avail, and that, ultimately, Perez and Carrington followed him and shot at him. He finally writes "I was fired in retaliation." The EEOC issued Olmeda a right to sue letter on June 11, 2014.
On August 20, 2014 Olmeda sued Cameron International Corporation; PMG, Inc. d/b/a a/k/a Personal Management Group d/b/a PMG; Billy Perez; and Scott Carrington. Seeking declaratory, injunctive, and monetary relief, Olmeda purports to advance six causes of action, which he describes in the complaint as:
(1) retaliation due to sexual harassment, in violation of Title VII and negligent screening, hiring, and supervising; (2) unlawful discriminatory employment practices under Title VII and Louisiana state law; (3) lack of policy for racial harassment, discrimination and retaliation and violence in the workplace in violation of state law; (4) assault and battery [and] intentional infliction [of emotional distress by] Dwight Caton; (5) compensatory and punitive damages under Title VII are allowed; (6) vicarious liability against... Cameron and PMG... strictly liable as joint tortfeasors in a common enterprise.
PMG now seeks dismissal of Olmeda's claims.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. Such a motion is rarely granted because it is viewed with disfavor. See Lowrey v. Tex. A & M Univ. Sys. , 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc. , 677 F.2d 1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal , 556 U.S. 662, 678-79 (2009)(citing Fed.R.Civ.P. 8). "[T]he pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation." Id . at 678 (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court "accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" See Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit , 369 F.3d 464 (5th Cir. 2004) (quoting Jones v. Greninger , 188 F.3d 322, 324 (5th Cir. 1999)). But, in deciding whether dismissal is warranted, the Court will not accept conclusory allegations in the complaint as true. Kaiser , 677 F.2d at 1050. Indeed, the Court must first identify allegations that are conclusory and, thus, not entitled to the assumption of truth. Ashcroft v. Iqbal , 556 U.S. 662, 678-79 (2009). A corollary: legal conclusions "must be supported by factual allegations." Id ...