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Hickman v. Melton Electric

United States District Court, S.D. Texas, Houston Division

February 27, 2019

LEE ARTHUR HICKMAN Plaintiff,
v.
MELTON ELECTRIC Defendant.

          MEMORANDUM AND RECOMMENDATION

         Pending before the court[1] is Defendants' Motion to Dismiss (Doc. 23). The court has considered the motion, Plaintiff's response, Defendant's reply, all other relevant filings, and the applicable law. For the reasons set forth below, the court RECOMMENDS that Defendant's motion be GRANTED and Plaintiff be given leave to file an amended complaint for the reasons stated below.

         I. Case Background

         Plaintiff, an African-American, filed this employment discrimination complaint against his former employer, Defendant Melton Electric, on March 5, 2018. An amended complaint was filed on July 10, 2018.

         A. Factual Background

         Plaintiff was employed as a journeyman electrician for Defendant from December 4, 2017, to December 19, 2017, when he was “forced to terminate his employment with the Defendant because of the harassment inflicted by his direct supervisor.”[2] Plaintiff characterizes this harassment as a manifestation of racial discrimination.[3]

         The alleged harassment is explained in further detail in Plaintiff's original complaint. On December 11, 2017, Plaintiff was assigned to a project under the direction of Steve McClendon (“McClendon”), who is white.[4] Over the course of the following week, Plaintiff alleges that he was subjected to harsh treatment by McClendon. This treatment included receiving “vague instructions” on work assignments and an “unreasonably limited time to complete them.”[5] Plaintiff also complains that, in addition to “yelling and cursing, ” at Plaintiff, McClendon threatened to lay off Plaintiff if Plaintiff was unable to meet the “unreasonable deadlines.”[6]

         On one occasion, Plaintiff claims that he was assigned a particularly dangerous task by McClendon and a company safety inspector reported the unsafe practice to McClendon's superiors.[7]Upon discovering that this particular inspector was African-American, McClendon walked up behind Plaintiff and whispered, “That's your people.”[8] After this incident, Plaintiff concluded that McClendon's treatment of Plaintiff was “due to [McClendon's] prejudice against African-Americans.”[9]

         Plaintiff filed a charge of race discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) after Defendant's Human Resources department refused to take corrective action regarding McClendon's conduct.[10] On January 26, 2018, the EEOC notified Plaintiff that it was unable to conclude that the information provided established a violation of Title VII, [11] and notified Plaintiff of his right to sue within ninety days of receipt of the notice.[12] Plaintiff also filed a complaint with the Occupational Safety and Health Administration (“OSHA”), which refused to take action as Plaintiff was no longer employed by Defendant.[13]

         B. Procedural Background

         When Plaintiff set out the factual basis for the lawsuit in the original complaint, he failed to identify any particular statute that the Defendant violated.[14] Documents attached to Plaintiff's original complaint referenced his administrative complaint pursuant to Title VII. In the amended complaint, Plaintiff asserted his discrimination claim under the Fifth and Fourteenth Amendments to the U.S. Constitution, as enforced through 42 U.S.C. § 1983 (“Section 1983").[15]

         On September 26, 2018, Defendant filed a motion to dismiss, arguing that Section 1983 is applicable only to state actors and thus inapplicable to Defendant, a private business.[16]

         II. Dismissal Standard

         Rule 12 (b)(6) allows dismissal of an action whenever the complaint, on its face, fails to state a claim upon which relief can be granted. The court should construe the allegations in the complaint favorably to the pleader and accept as true all well-pleaded facts. Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 803 n.44 (5th Cir. 2011)(quoting True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009)).

         A complaint need not contain “detailed factual allegations” but must include sufficient facts to indicate the plausibility of the claims asserted, raising the “right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility means that the factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 678. A plaintiff must provide “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. In other words, the factual allegations must allow for an inference of “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. 678.

         III. ...


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