Opinion
No. 5:20-CV-00356-FL
08-14-2020
David Lee Blount, Jr., Plaintiff, v. Ajinomoto Health and Nutrition, Defendant.
Order & Memorandum & Recommendation
Plaintiff David Lee Blount, Jr. says his employer, Ajinomoto Health and Nutrition, subjected him to workplace bullying and harassment because of his sexual orientation. D.E. 1-1. This behavior caused debilitating mental health problems for Blount, who now sues Ajinomoto. He asks the court to allow him to proceed without paying filing fees and other costs associated with a civil action, otherwise known as proceeding in forma pauperis (IFP). D.E. 1.
Blount's lack of income entitles him to IFP status. And after reviewing the complaint (as required by 28 U.S.C. § 1915(e)), the court finds that Blount has stated a hostile work environment claim, caused by harassment about his sexual orientation, under Title VII of the Civil Rights Act of 1964. The court allows this claim to proceed. But the undersigned recommends the district court dismiss Blount's claim for retaliation under Title VII for failure to state a claim.
I. Background
David Lee Blount, Jr. began working for Ajinomoto Health and Nutrition in 2016. Compl. at 2, D.E. 1-1. While an employee, he says he was the target of bullying and harassment because of his sexual orientation. Id. Blount is a gay man. His colleagues called him "a gay faggot" and "compared [him] to . . . someone's whiny bitch wife." Id. He reported this behavior, but employees and supervisors constantly ignored his reports. Id.
When Blount told the human resources director that his foreman Tim Stewart called him "a whiny bitch like his wife," the director "laughed in [Blount's] face." Id. Another foreman reported Stewart's behavior on Blount's behalf, yet Ajinomoto took no action. Id. Blount says Stewart's boss knew how Stewart treated Blount. Id. But instead of addressing this behavior, the company retaliated against Blount by writing him up after he complained. Id.
Blount says that his complaints about workplace harassment have been "ignored for years." Id. Other employees quit when Ajinomoto took no action after they reported concerns to supervisors and human resources. Id. Blount fears for his safety and the safety of his boyfriend. Id. at 3. The employees who bullied him know where he lives, and one employee said he would "follow someone home from work to beat them into the ground." Id. at 2-3. Blount's mental health has suffered because of this. He has been on medical leave since April 2020 and sees a therapist for panic attacks, fear, severe depression, and suicidal thoughts. Id. at 3. He seeks damages and an outstanding job reference. Id.
II. Discussion
A. Application to Proceed in District Court without Prepaying Fees or Costs
Blount first asks the court to allow him to proceed with his action without paying the required filing fee and other costs associated with litigation, known as proceeding in forma pauperis or IFP. The court may grant his request if he submits an affidavit describing his assets and the court finds that he could not pay the filing fee. 28 U.S.C. § 1915. In assessing a request to proceed IFP, the court should consider whether the plaintiff can pay the costs associated with litigation "and still be able to provide himself and his dependents with the necessities of life." Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotations omitted).
The court has reviewed Blount's application and finds that he lacks the resources to pay the costs associated with this litigation. The court thus grants Blount's motion (D.E. 1) and allows him to proceed IFP.
B. Screening under 28 U.S.C. § 1915
Along with determining whether Blount is entitled to IFP status, the court must analyze the viability of the claims in his complaint. 28 U.S.C. § 1915(e). The court reviews a complaint to eliminate those claims that unnecessarily impede judicial efficiency and the administration of justice. The court must dismiss any portion of the complaint it determines is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from that relief. Id. § 1915(e)(2)(B).
A complaint fails to state a claim upon which relief may be granted if it does not "contain sufficient factual matter, accepted as true, 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, 570 (1955)). The Supreme Court has explained that "[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." Id. Blount's pro se status relaxes, but does not eliminate, the requirement that her complaint contain facially plausible claims. The court must liberally construe a pro se plaintiff's allegations, but it "cannot ignore a clear failure to allege facts" that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing, LP, 867 F. Supp. 2d 766, 776 (E.D.N.C. 2011).
Title VII of the Civil Rights Act of 1964 entitles plaintiffs to relief if they are discriminated against because of their "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. It also protects prohibits an employer from retaliating against an employee who complains about discrimination. Id. § 2000e-3. The United States Supreme Court has explained that "sex" under Title VII includes sexual orientation and thus the provision protects homosexual or transgender persons from workplace discrimination. Bostock v. Clayton Cty., Ga., 140 S. Ct. 1731, 1741 (2020) ("[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."). Thus, Blount's claim properly lies under Title VII. See, e.g., Horton v. Midwest Geriatric Mgmt., LLC, 963 F.3d 844, 847 (8th Cir. 2020) (remanding for consideration after Bostock a plaintiff's Title VII claim that the defendant withdrew plaintiff's job offer after learning he was gay).
1. Hostile Work Environment
Blount claims Ajinomoto created a hostile workplace environment by targeting Blount because of his sexual orientation. A Title VII claim that harassment based on sexual orientation created a hostile work environment requires a plaintiff to make four showings. First, he must show that he "experienced unwelcome harassment." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). Second, the harassment must stem from his sexual orientation. Id. Third, the harassment must be "sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere." Id. And finally, the plaintiff must show that "there is some basis for imposing liability on the employer." Id.
In evaluating whether a workplace is a hostile environment, courts must look to "all the circumstances," including "the frequency of the discriminatory conduct"; "its severity"; "whether it is physically threatening or humiliating, or merely offensive"; and "whether it unreasonably interferes with an employee's work performance." E.E.O.C. v. R&R Ventures, 244 F.3d 334, 339 (4th Cir. 2001) (citation omitted). "Pleading a hostile work environment requires both an objective and subjective showing, specifically an environment that 'a reasonable person would find hostile or abusive, and one that the victim did in fact perceive to be so." Reed v. Airtran Airways, 531 F. Supp. 2d 660, 669 (D. Md. 2008) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
Blount describes a work environment of repeated verbal harassment, including slurs and derogatory comments, based on his sexual orientation. He reported several of these incidents to his superiors and to human resources, but the company took no action against the offenders. When he reported being called a "whiny bitch," a human resources employee "laughed in [Blount's] face." Compl. at 2. Blount is scared, feels physically threatened, and had to take medical leave from work. A reasonable person would find this environment hostile.
Blount has made a prima facie case for a hostile work environment claim under Title VII. So the court will allow this claim to proceed.
2. Retaliation
Blount also claims that Ajinomoto retaliated against him for complaining about his workplace treatment. To establish a prima facie case for retaliation under Title VII, Blount must prove three elements. First, he must show that he "engaged in a protected activity." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 271 (4th Cir. 2015) (quotation omitted). Next, he must show that "[his] employer took an adverse employment action against [him]." Id. And finally, Blount must prove "that there was a causal link between the two events." Id.
An adverse employment action is "one that 'constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). The plaintiff must also show that the employer's desire to retaliate was the but-for cause of the adverse employment action. Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013).
Blount says that Ajinomoto retaliated against him by writing him up after he complained about harassment from his colleagues. But a write up by itself "does not rise to the level of an adverse employment action." Moore v. Williamsburg Cnty. Sch. Dist., 2011 WL 7078306, at *5 (D.S.C. Oct. 25, 2011) (citing cases), adopted by, No. 4:08-CV-3800, 2012 WL 194381 (D.S.C. Jan. 23, 2012), aff'd, 474 F. App'x 249 (4th Cir. 2012); Drake v. Sci. Applications Int'l Corp., Case No. 2:17-CV-02664, 2019 WL 1574264, at *7 (D.S.C. Mar. 4, 2019) ("It is well-established that a written reprimand does not constitute an adverse employment action absent a significant detrimental effect on the plaintiff's conditions of employment."); Brown v. SDH Educ. E. LLC, Civil Action No. 3:12-CV-2961, 2014 WL 468974, at *7 (D.S.C. Feb. 4, 2014) ("[T]he write-up itself . . . can[not] form the basis of a retaliation claim because [it is] not [a] materially adverse employment action[]."). Blount has not alleged that the write up led to any major change in his employment or that Ajinomoto took any specific action after writing him up. Thus, Ajinomoto's conduct was not an adverse employment action.
Blount has failed to establish a prima facie case for retaliation. The district court should dismiss this claim from his complaint.
III. Conclusion
For these reasons, the court will grant Blount's motion to proceed IFP (D.E. 1) and allow his Title VII hostile work environment claim to proceed. But the undersigned recommends the district court dismiss Blount's Title VII retaliation claim for failure to state a claim.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: August 14, 2020.
/s/_________
ROBERT T. NUMBERS, II
UNITED STATES MAGISTRATE JUDGE