United States District Court, Eastern District of Louisiana
SECTION: “B” (5)
ORDER AND REASONS
MICHAEL B. NORTH, UNITED/STATES MAGISTRATE JUDGE.
Before the Court is the Rule 12(b)(6) Motion for Partial Dismissal filed by Defendant, Bollinger Shipyards, Inc. (“Bollinger”). (Rec. doc. 8). That motion is opposed by Plaintiff, Ondraontae Wyre (“Wyre”). (Rec. doc. 13). A Reply Memorandum was filed by Bollinger (rec. doc. 16) and the Court heard oral argument on the Motion on December 3, 2014. (Rec. doc. 17).
Wyre is an African-American, female former employee of Bollinger. She was employed with Bollinger as a welding apprentice from approximately October 23, 2013, until her voluntary resignation in March of 2014. (Rec. doc. 1, ¶¶ 6-8, 34).
In her Complaint, Wyre alleges that in October 2013 she “requested to be provided with personal protective equipment (“PPE”) for her welding work and classes in welding, including welding sleeves and a welding bib, ” but that she was told “that Bollinger may not have sleeves and a bib that would fit her, because of her breasts and that the welding sleeves and bibs Bollinger had on hand were made for men.” (Rec. doc. 1, ¶ 9). Wyre alleges that she was denied this PPE despite the fact that male welding apprentices routinely received welding sleeves and bibs. (Rec. doc. 1, ¶¶ 10-11). She claims that Bollinger’s alleged failure to provide her PPE constitutes gender discrimination in violation of Title VII and Section 1981. (Rec. doc. 1, ¶ 39). Plaintiff also alleges she was subjected to unlawful sexual harassment by safety representative, Louis Guidry, and that on one occasion, another employee, who is a white female, “referred to [Plaintiff] as a slave.” (Rec. doc. 1, ¶¶ 12-17, 22-26, 32). Wyre states in her Complaint that following this statement, she immediately left the room and “never returned to her position at Bollinger.” (Rec. doc. 1, ¶ 34).
The claims that are subject of this Motion are said to arise under 42 U.S.C. §1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and include: (1) a claim that Bollinger “discriminatorily failed to issue necessary protective equipment to the plaintiff, which it paid for and provided to her male counterparts”; (2) an apparent claim that Bollinger declined to investigate the aforementioned conduct by Mr. Guidry because of Wyre’s race and; (3) a claim centered on the supervisor’s comment referring to Wyre as a “slave” and Bollinger’s failure to investigate that transgression. (Rec. doc. 1 at pp. 7-8).
In seeking dismissal of these claims, Bollinger advances a number of arguments. First, it argues that the failure to issue PPE is not an “ultimate employment decision” of the type required to maintain a Title VII claim under applicable Fifth Circuit precedent. See, e.g., Preston v. Tex. Dep't of Family & Prot. Servs., 222 Fed.Appx. 353, 358 n.18 (5th Cir. 2007)(quoting Dollis v. Rubin, 77 F.3d 777, 781–822 (5th Cir. 1995)(per curiam)); Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004)). Second, it argues that Wyre failed to plead any factual basis to support her conclusory allegation that Bollinger failed to investigate Guidry’s harassing behavior because of Wyre’s race. Finally, Bollinger argues that the single alleged comment directed at Wyre in which a supervisor called her a “slave” was not “severe or pervasive enough to create an objectively hostile or abusive work environment.” (Rec. doc. 16 at p. 4).
Opposing Bollinger’s efforts to have the aforementioned claims dismissed, Wyre argues first that Bollinger’s refusal to provide her with PPE constitutes an “adverse employment action” of a type sufficient to sustain a claim under Title VII for the following reasons:
• Because Bollinger was required under regulations of the federal Occupational Safety and Health Administration (“OSHA”) to provide Wyre the subject PPE and its failure to do so “materially breached [Bollinger’s] obligation to Wyre.” (Rec. doc. 13 at p. 5).
• Because the subject protective equipment was a “tangible benefit” which amounted to “compensation in the form of fringe benefits” and it was withheld from her on the basis of her gender. (Id. at p. 6).
• Because the withholding of the subject protective equipment altered Wyre’s work conditions and therefore her job duties, placing her in an objectively worse position or situation and in a significantly more dangerous job. (Id. at p. 7).
• Because the failure to provide necessary protective equipment produces a “material employment disadvantage, ” citing Eighth Circuit precedent. (Id. at p. 9).
As for Bollinger’s efforts to have the Court dismiss the claim for racial discrimination, Wyre argues that Bollinger’s failure to take action against Guidry for his alleged sexual harassment of Wyre evidences Bollinger’s “racial motivation” in failing to investigate Wyre’s “repeated complaints against [Guidry.]” (Id. at p. 11). Finally, Wyre appears to argue that because Bollinger created or allowed a “culture” to exist in which a white supervisor was “entitled” to refer to her as a slave, her racial ...