Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Neal v. Whole Food Market, Inc.

United States District Court, E.D. Louisiana

May 15, 2018


         SECTION “R” (5)



         Before the Court is Defendant Whole Food Company, Inc.'s partial motion to dismiss.[1] For the following reasons, the Court grants the motion.

         I. BACKGROUND

         This case arises out of claims of racial discrimination in employment.[2]Plaintiff Marques Neal began working for Whole Foods in Houston, Texas in March 2014.[3] In June 2015, plaintiff transferred to a Whole Foods store in Metairie, Louisiana.[4] Plaintiff is African-American, and he alleges that he experienced racial discrimination, a hostile work environment, and unlawful retaliation while employed by Whole Foods between March 2014 and June 2016.[5]

         Specifically, plaintiff asserts that his supervisor and coworkers in Houston engaged in inappropriate and discriminatory conversations about race, including discussions about slavery and Bill Cosby's alleged sexual misconduct.[6] According to the amended complaint, plaintiff reported these incidents to Whole Foods management but no disciplinary action was taken.[7]Plaintiff alleges that he continued to experience discrimination after transferring to the Metairie store.[8] Plaintiff asserts that he and other African-American employees were often subject to verbal abuse in the workplace, and that he experienced and observed non-African-American supervisors treating African-American team members in a degrading manner that was distinct from the treatment of non-African-American employees.[9]

         The amended complaint specifically alleges that plaintiff's immediate supervisor in Metairie displayed an offensive image of an African-American man on his computer for several days and treated plaintiff less favorably than non-African-American employees with regard to work duties and scheduling requests.[10] Plaintiff asserts that he contacted the Whole Foods regional office multiple times to report racial discrimination and other management issues in the meat department.[11] In late May 2016, plaintiff refused a request from a customer to grind whole bone-in chickens.[12] In response, plaintiff's supervisor allegedly berated and humiliated plaintiff in front of the customer and threw a chicken at him.[13] Plaintiff asserts that he never observed similar treatment of any non-African-American employees, and he believes this conduct was motivated by racial animus.[14] Plaintiff was subsequently written up for insubordination and suspended indefinitely.[15]

         After his suspension, plaintiff completed a charge of discrimination with the Equal Employment Opportunity Commission.[16] Plaintiff was later terminated from his position at Whole Foods.[17] On May 26, 2017, plaintiff filed suit against defendants Whole Foods Market, Inc. and Whole Food Company, Inc., alleging racial discrimination, religious discrimination, a hostile work environment, unlawful retaliation, and failure to pay wages and overtime.[18] The complaint asserts claims under 42 U.S.C. § 1981, Title VII of the Civil Rights Act, the Fair Labor Standards Act, and state law.[19]

         On January 22, 2018, the Court dismissed with prejudice plaintiff's Title VII claims that involve events in Houston, Texas before June 2015 because such claims are time-barred.[20] The Court dismissed without prejudice plaintiff's claims of religious discrimination under Title VII and a racially hostile work environment and racial discrimination under Title VII and 42 U.S.C. § 1981.[21] The Court granted leave to amend as to these claims.[22] Plaintiff's retaliation claims were not dismissed. Plaintiff timely filed an amended complaint.[23] In response, defendant Whole Food Company again moves to dismiss the claims for a hostile work environment, racial discrimination, and religious discrimination.[24]


         To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts 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, 547 (2007)). 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.” Id. at 678. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

         A legally sufficient complaint must establish more than a “sheer possibility” that the plaintiff's claim is true. Id. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Twombly, 550 U.S. at 555. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, the claim must be dismissed. Twombly, 550 U.S. at 555.


         A. Religious Discrimination

         In response to defendant's motion to dismiss with prejudice plaintiff's claim of religious discrimination, plaintiff maintains that he has not reasserted that claim in the amended complaint.[25] The Court's January 22, 2018, order put plaintiff on notice that failure to timely amend his complaint would result in dismissal of his claim with prejudice.[26] Plaintiff had a “fair opportunity to present [his] case” as to religious discrimination, and the Court dismisses his religious discrimination claim with prejudice. Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563, 567 (5th Cir. 2003).

         B. Racial Discrimination

         Plaintiff brings claims of racial discrimination under Title VII and 42 U.S.C. § 1981.[27] Both statutes prohibit racial discrimination in employment. See CBOCS West, Inc. v. Humphries, 553 U.S. 442, 455 (2008). Claims under Title VII and § 1981 are subject to the same substantive legal standards, and they differ only in their statutes of limitations and administrative exhaustion requirements. See Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 992 (5th Cir. 2005); see also Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014). The Court thus applies the same analysis to plaintiff's claims under both statutes.

         1. Hostile Work Environment

         An employee has a cause of action for racial discrimination under Title VII and § 1981 “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citation omitted); see also Mendoza v. Helicopter, 548 Fed.Appx. 127, 128-29 (5th Cir. 2013). This standard requires extreme conduct, and “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citation omitted).

         In evaluating hostile work environment claims, courts consider the totality of the circumstances, including “the frequency of the conduct, its severity, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee's work performance.” Alaniz v. Zamora-Quezada, 591 F.3d 761, 771 (5th Cir. 2009) (internal citation omitted). A plaintiff must subjectively perceive the environment to be abusive, and the work environment must be objectively hostile or abusive. See Harris, 510 U.S. at 21-22.

         As explained in the Court's January 22, 2018 order, [28] plaintiff's allegations regarding his employment in Houston are not sufficiently related to alleged discriminatory conduct in Metairie to make these incidents “part of the same actionable hostile work environment practice.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 120 (2002). The Court dismissed plaintiff's Title VII claims with prejudice insofar as they involve events that occurred in Houston, Texas before June 2015.[29] Plaintiff asserts that incidents in Houston relate to a pattern of ongoing retaliation.[30] But plaintiff's retaliation claims are not the subject of this motion to dismiss. Accordingly, the Court does not consider events in Houston in evaluating plaintiff's hostile work environment claim.

         Excluding incidents that took place in Houston, plaintiff identifies six instances of alleged race-based harassment at defendant's store: (1) his supervisor displayed a racially offensive image on his computer for several days; (2) he was often scolded in a condescending manner; (3) he was subject to retaliation by his manager, Jeff Zerwick, because Zerwick was aware of Neal's complaints of racial discrimination at the Houston store; (4) his immediate supervisors enforced regulations on plaintiff that were not enforced on non-African-American team members, such as requiring plaintiff to complete daily poultry logs and ordering him to grind bone-in chickens; (5) his scheduling requests were either denied or ignored whereas his non-African-American coworker's scheduling requests were routinely granted; and (6) he was berated by his superiors in a meeting until he felt physically ill, and was then suspended and later terminated because of his complaints of racial discrimination and harassment.[31]

         These factual allegations are insufficient to create the reasonable inference that defendant is liable for a hostile work environment. The amended complaint asserts that plaintiff's immediate supervisor displayed a highly offensive image of an African-American male as a screensaver or background image on his workplace computer for several days.[32] This image allegedly depicted an African-American man with apelike characteristics, including copious amounts of hair on his face, arms, hands, and knuckles.[33]According to the amended complaint, one of plaintiff's coworkers opined that the image resembled plaintiff.[34] Zerwick, the store manager, allegedly looked at the image, laughed, and failed to take any remedial action.[35]

         The Fifth Circuit has explained “that intentionally comparing African-Americans to apes is highly offensive such that it contributes to a hostile work environment.” See Henry v. CorpCar Servs. Houston Ltd., 625 Fed.Appx. 607, 612 (5th Cir. 2015). But the amended complaint does not allege that plaintiff's supervisor or coworkers compared either plaintiff or the man in the image to an ape. The image at issue is attached to plaintiff's amended complaint.[36] It is a photograph of an extremely hairy man standing with his arms crossed.[37] Beyond the unusual amount of hair, the image does not indicate any connection between the man in the photograph and an ape.

         That plaintiff perceived the man in the image to have apelike characteristics does not render the display of this image comparable to cases involving explicit monkey references directed at African-American employees. Cf. Henry, 625 Fed.Appx. at 612-13 (woman hired to perform in a gorilla suit at an employee meeting scheduled around Juneteenth “repeatedly emphasized the ‘black' aspects of her gorilla suit” and “touched employees and sat in their laps while making comments that were both sexually suggestive and racially degrading”); Allen v. Potter, 152 Fed.Appx. 379, 382 (5th Cir. 2005) (African-American plaintiffs alleged that they were required to work in a cage and that coworkers made comments like “Look at the monkeys, ” and “Don't feed the monkeys”); Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000) (plaintiffs were subjected to racist remarks for three years, including comparisons to slaves and monkeys); Postell v. Lane, No. 12-527, 2014 WL 4925665, at *6 (M.D. La. 2014) (supervisor, among other offensive statements, told African-American sales employees to go pick cotton and directly referred to African-American employees as monkeys).

         The display of the image at issue does not rise to the level of severe or “extremely serious” conduct. See Faragher, 524 U.S. at 788. Nor does it indicate pervasive harassment. Plaintiff was employed at defendant's Metairie location for about one year, and the objectionable image was displayed for only a few days.[38] Moreover, a coworker's alleged comment that the image bore a likeness to plaintiff may have been objectively offensive, but it does not indicate severe or pervasive harassment. See Harris, 510 U.S. at 21 (explaining that the “mere utterance of an epithet which engenders ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.