United States District Court, E.D. Louisiana
ERICK R. RIOS
WESTPORT LINEN SERVICES, LLC
ORDER AND REASONS
WELLS ROBY, CHIEF UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant’s Motion to Dismiss
Plaintiff’s First Amended Complaint Pursuant to Rule
12(b)(6) (R. Doc. 14) filed by the Defendant,
Westport Linen Services, LLC (“Westport”),
seeking dismissal of Plaintiff’s lawsuit in its
entirety, as the allegations set forth in the First Amended
Complaint fail to state a viable claim or cause of action
against Defendant Westport upon which relief may be granted.
Plaintiff Erick Rios (“Rios”) opposes the motion.
R. Doc. 15. The Court heard this motion on the briefs.
February 22, 2019, Rios filed this pro se employment
discrimination complaint against Westport in the State of
Louisiana Civil District Court for the Parish of New Orleans.
R. Doc. 1-5, p. 3. On April 3, 2019, the action was removed
to the United States District Court invoking the
Court’s federal question jurisdiction. R. Doc. 1. Rios
alleges that, on March 7, 2018 he was denied promotion to the
position of maintenance chief because he is of
Hispanic/Latino origin. Specifically, on March 16, 2018, Rios
expressed an interest in a maintenance lead position, which
he was denied purportedly due to his several tardy
violations. R. Doc. 1-5, p. 6. As a result, of the denied
promotion, Rios resigned from his job on May 17, 2018, which
he contends constitutes constructive discharge. R. Doc. 1-5,
Charge of Discrimination
September 10, 2018, Rios filed a Charge of Discrimination
with the Louisiana Commission on Human Rights and the EEOC
complaining that he was discriminated based upon his race. R.
Doc. 1-5, p. 14. He neither specifically alleged harassment
nor constructive termination. Id. He does, however,
complain that in June 2017, despite his applying and
interviewing for Maintenance Lead, he began working as a
Maintenance Technician and throughout the entirety of his
employment with Westport his manager, Paul Spitzer
(“Spitzer”), refused to allow him to apply for
promotions to the supervisory positions of Maintenance Lead
and Maintenance Chief. Id. As for the discriminatory
actions, Rios complains that his manager Spitzer tolerated
and even condoned tardiness from Caucasian employees, such as
his supervisor Jeremy Frye (“Frye”), by still
considering Frye for the position of Maintenance Chief
despite Spitzer’s refusal to consider him due to his
tardy violations, the very same reason. Id.
First Amended Complaint
25, 2019, Rios filed a First Amended Complaint and largely
recalled the facts setting forth the reasons for his
constructive discharge. R. Doc. 13. He also alleges that when
he was hired, the Defendant hired workers through contracting
agencies rather than traditional job postings. R. Doc. 13,
¶ 15. He complained that his boss Frye was hired without
relevant experience or education. R. Doc. 13, ¶ 20. Rios
contends that despite his training and experience that his
manager Spitzer assigned him to the low skilled position of
linen dryer/sheet puller work rather than maintenance work
which was assigned to Frye. R. Doc. 13, ¶ 22. Rios
complains that he was hired as a maintenance technician but
assigned to linen work. R. Doc. 13, ¶ 17. He complains
while his supervisor Frye recommended that Rios be designated
as employee of the month that on the day of the recognition,
Rios complains that Spitzer derisively and mockingly called
out Rios’s name when the plaque actually had someone
else’s name on it, and then Spitzer smirked and walked
off. R. Doc. 13, ¶ 29.
also alleges that the Defendants created a hostile work
environment and implemented racially selective and improper
disciplinary scheme that targeted minority workers and
resulted in the denial of promotions and pay raises. R. Doc.
13, ¶¶ 32-34. Specifically, he alleges that after
close to one year of working for the company that he had
enough experience to rise to the position of Chief of
Maintenance, which had been vacant since August 2017. Despite
his expression of interest in being promoted to the position
and inquiry with the plant manager via text message, Westport
ultimately advised Rios that it was not seeking to fill the
position. R. Doc. 13, ¶36. Rios alleges that he was
denied this promotion to a position that ceased to exist as
of July 21, 2017 because of his Hispanic/Latino origin. R.
Doc. 13, ¶38.
point prior, Rios had also believed, due to his
qualifications, he could be promoted to Maintenance Lead and
inquired about whether there was anything he could do to
advance a promotion. Id. Westport also rejected this
promotion request citing to his excessive tardy violations.
Id. Thereafter, he started showing up to work on
time, followed company polices, and inquired as to the length
of time required to elapse before he would be reconsidered
for promotion. Id. Still, he was overlooked.
complains of disparate impact because Frye, his Caucasian
supervisor, was also frequently tardy but still considered
for promotion. R. Doc. 13, ¶¶ 39-41. Rios further
alleges after repeated denials that he sought other
employment because of the fear of retaliation and
consequently suffered emotional distress, humiliation,
embarrassment, stress, anxiety, and low self-esteem. R. Doc.
13, ¶43. On May 9, 2018, Rios lodged an official
complaint with Westport’s Human Resources Department
about management’s discriminatory practice who, after
reviewing his complaint, found no discrimination. R. Doc. 13,
¶46. On May 17, 2018, Rios tendered his resignation from
his position as Maintenance Technician after receiving
additional workplace violations for tardiness. R. Doc. 13,
addition to the Title VII claims, Rios complaint seeks relief
pursuant to 42 U.S.C. § 1981 for the alleged race-based
discrimination and retaliation which he experienced. R. Doc.
13, ¶¶52-55. Relying on the same facts, he seeks
lost earnings, past and future, emotional distress and other
equitable and compensatory damages allowed. R. Doc. 13,
¶57. Rios also seeks an award of punitive damages
including front and back pay equitable relief, liquidated
damages and attorney’s fees, costs and interest.
contends that Rios’s claim fails to plead facts
sufficient to establish two essential elements of his failure
to promote discrimination claim; namely that (1) Rios has not
alleged that he was qualified for the position he sought and
(2) Rios has not alleged that after Rios was denied
promotion, the positions remained open and Westport sought
applicants for these positions. R. Doc. 14-1, p. 2. Westport
further contends that Rios’s claim fails to plead facts
sufficient to establish the essential elements of his
constructive discharge claim by failing to allege that
Westport deliberately made his working conditions so
intolerable that a reasonable person in his position would be