United States District Court, N.D. Texas, Dallas Division
DAMION D. FLOWERS, Plaintiff,
BORDEN MILK CO., Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE
Damion Flowers filed a pro se civil action alleging
employment discrimination, which the Court referred to the
United States magistrate judge pursuant to 28 U.S.C. §
636(b). The Court granted Plaintiff leave to proceed in
forma pauperis and withheld issuing process pending
judicial screening. Having screened the complaint, the
magistrate judge recommends that this case be DISMISSED.
March 19, 2019, Plaintiff filed an original complaint that
stated, in its entirety, “Racial Discrimination,
Discrimination. Reason I'm unemployed and can't work.
Borden Milk. 1) Ran into by a 18-wheeler. 2 surgeries
5/16/16. 2) Another car accident.” Pl.'s Compl. 1-2
(ECF No. 3). Plaintiff also attached a Notice of Right to Sue
issued on December 21, 2018 by the Equal Employment
Opportunity Commission. Id. 3-4. On March 25, 2019,
the Court sent Plaintiff a notice of deficiency advising him
that his complaint failed to comply with Fed.R.Civ.P.
8(a). Notice of Deficiency and Order (ECF No.
April 26, 2019, Plaintiff filed an amended complaint, which
states in its entirety:
Applied for a job or position listed as blow mold operator.
Once at Borden and introducing myself or meeting I was told
to unload trailers by hand a job that I'm over qualified
to do and was not hired to do. After the incident or this
hate crime. (sic) After that I was nearly killed (by
amputation) by an 18 wheeler and rushed to surgery. I
received racist comments and actions and a straining (sic)
order and told not to come back.
Pl.'s Am. Compl. 1 (ECF No. 11). Plaintiff also attached
a copy of an EEO charge of discrimination, which states
“During my employment, my employer hit me with an
eighteen (18) wheeler truck. Based on information and belief
it was done because of my race.” Id. 2. The
EEO charge states that Plaintiff is black. Id. The
complaint does not state what relief Plaintiff is seeking.
district court may summarily dismiss a complaint filed in
forma pauperis if it concludes the action is: (1)
frivolous or malicious; (2) fails to state a claim on which
relief may be granted; or (3) seeks monetary relief against a
defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B). To state a claim upon which relief may be
granted, a plaintiff must plead “enough facts to state
a claim to relief that is plausible on its face, ”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007), and must plead those facts with enough specificity
“to raise a right to relief above the speculative
level[.]” Id. at 555. “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, __ (2009). While a
complaint need not contain detailed factual allegations, the
plaintiff must allege more than labels and conclusions.
Twombly, 550 U.S. at 555.
establish a claim of employment discrimination, Plaintiff
must plead and prove that he (1) is a member of a protected
class; (2) was qualified for the position; (3) was subject to
an adverse employment action; and (4) was replaced by someone
outside the protected class, or, in the case of disparate
treatment, shows that other similarly situated employees were
treated more favorably. Bryan v. McKinsey & Co.,
375 F.3d 358, 360 (5th Cir. 2004). While Plaintiff is not
required to submit evidence to establish all the elements of
his claim to survive summary dismissal at this stage of the
litigation, he must plead enough facts on all the ultimate
elements of his discrimination claim to make his case
plausible. Chhim v. Univ. of Tex. at Austin, 836
F.3d 467, 470 (5th Cir. 2016) (per curiam) (citing Raj v.
La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013)).
case, Plaintiff alleges that he was discriminated against
when an unnamed person ordered him “to unload trailers
by hand a job that I'm over qualified to do and was not
hired to do.” Pl.'s Am. Compl. 1. This allegation,
even if proved, does not constitute an “adverse
employment action” under Fifth Circuit law.
“[A]dverse employment actions include only ultimate
employment decisions such as hiring, granting leave,
discharging, promoting, or compensating.”
Mitchell, 326 Fed.Appx. 852, 854 (5th Cir. 2009)
(quoting McCoy v. City of Shreveport, 492 F.3d 551,
559 (5th Cir. 2007). Being assigned unpleasant or demeaning
tasks does not constitute an adverse employment action.
See, e.g. Southard v. Texas Board of Criminal
Justice, 114 F.3d 539, 554 (5th Cir. 1997)
(“Undesirable work assignments are not adverse
employment actions.”); see also Hart v. Life Care
Ctr. Of Plano, 243 Fed.Appx. 816, 818 (5th Cir. 2007)
(holding that being assigned more difficult tasks is not
actionable); Matthews v. City of Houston Fire
Dep't, 609 F.Supp.2d 631, 645 (S.D. Tex. 2009)
(“[M]ere assignment of undesirable dutiesâ is not
considered an ultimate employment decision.). Thus, Plaintiff
fails to allege that he suffered an adverse employment
action. Plaintiff also fails to allege that other similarly
situated employees outside his protected class were treated
states that he “received racist comments and
actions” after he was run over by an 18-wheeler.
Pl.'s Am. Compl. 1. Employment discrimination claims can
be proven by direct evidence. Russell v. McKinney Hosp.
Venture, 235 F.3d 219. 222 (5th Cir. 2000). “To
serve as direct evidence of an employer's discriminatory
intent, a workplace comment must be ‘direct and
unambiguous, allowing a reasonable jury to conclude without
any reference or presumptions that [race] was an
impermissible factor in the decision to terminate the
employee.'” Vital v. Nat'l Oilwell
Varco, 2014 WL 4983485 at *18 (S.D. Tex. Sept. 20, 2014)
(quoting EECO v. Tex. Instruments, Inc., 100 F.3d
1173, 1181 (5th Cir. 1996)). Here, Plaintiff states only that
he “received racist comments and actions.” He
does not describe the alleged racist comments or actions; nor
does he allege that any comments directly and unambiguously
point to the ...