KING

v.

UNITED PARCEL SERVICE, INC ("UPS")

THIS CAUSE comes before the Court upon Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint (“Motion”), [ECF No. 12], filed on October 11, 2022.1 Having considered Defendant’s Motion, the record, and being otherwise fully advised, it is hereby ORDERED AND ADJUDGED that the Motion, [ECF No. 12], is GRANTED IN PART for the reasons stated herein.

BACKGROUND

Plaintiff Demetric King is a black employee of Defendant United Parcel Service, Inc. (“UPS”). See First Am. Compl. (“Amended Complaint”), [ECF No. 11] ¶ 7. King began working for UPS in April 2014 and, until about October 2018, worked “in the dual capacities of Preload/Temporary Cover Driver.” Am. Compl. ¶ 10.

In September 2018, King’s supervisor John Lieberman “began to denigrate [King] by referring to him as ‘garbage can boy,’” a term he allegedly intended as a racial epithet. See Am. Compl. ¶¶ 11–12. Shortly after Lieberman began referring to King as “garbage can boy,” King made complaints to Lieberman, UPS’s human

LEGAL STANDARD

“To survive a motion to dismiss, a complaint must 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 (2007)). When evaluating a Rule 12(b)(6) motion to dismiss, the court must accept all well-pleaded factual allegations as true and draw all inferences in favor of the plaintiff. Smith v. United States, 873 F. 3d 1348, 1351 (11th Cir. 2017). Although the court is required to accept all allegations contained in the complaint as true, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678; (quoting Twombly, 550 U.S. at 555). Courts liberally construe complaints filed by pro se litigants. See Bingham v. Thomas, 654 F. 3d 1171, 1175 (11th Cir. 2011). A court, however, may not “act as de facto counsel or rewrite an otherwise deficient pleading to sustain an action.” Bilal v. Geo Care, LLC, 981 F. 3d 903, 911 (11th Cir. 2020).

ANALYSIS

I. Timeliness

UPS argues this action is untimely because King’s Right to Sue Letter was issued on August 19, 2020. Mot. at 3–6. While King will ultimately have to prove this action is timely, UPS’s argument presents factual issues the Court cannot adjudicate on a motion to dismiss. Title VII requires a plaintiff to file suit within ninety days after receiving notice of a right to sue letter. See 42 U.S.C. § 2000e-5(f)(1).

This ninety day period generally begins to run after the plaintiff receives the right to sue letter, not when the letter is mailed. Norris v. Fla. Dep’t of Health & Rehab. Servs., 730 F. 2d 682, 683 (11th Cir. 1984).

Indeed, rather than analyze this ninety day rule rigidly, the Eleventh Circuit requires that courts determine the issue “on a case-by-case basis to fashion a fair and reasonable rule for the circumstances of each case, one that would require plaintiffs to assume some minimum responsibility without conditioning a claimant’s right to sue on fortuitous circumstances or events beyond her control.” Kerr v. McDonald’s Corp., 427 F. 3d 947, 952 (11th Cir. 2005) (alterations accepted) (quoting Zillyette v. Capital One Fin. Corp., 179 F. 3d 1337, 1340 (11th Cir. 1999)). The Right to Sue Letter states it was issued on August 19, 2020. See [ECF No. 12-1].3 King, however, claims he and his former counsel first received it on March 23, 2022 after they filed a FOIA request with the EEOC. See Resp. at 1–4; Am. Comp. ¶ 5. UPS responds by claiming the Right to Sue Letter was nonetheless uploaded on the date it was issued to an online portal

King’s former counsel could access. Reply at 3–5. UPS also argues the letter was in fact mailed to King. Id. As evidenced by the fact the parties attach evidence to support their positions, these are factual disputes that are inappropriate to resolve at the motion to dismiss stage, and the Court

Accordingly, the Motion is denied as to this ground and the Court does not reach the issue of equitable tolling.⁴

II. Failure to State a Claim

UPS next argues that King has not sufficiently pled a hostile work environment claim. Mot. at 6–8. The Court agrees the Amended Complaint lacks sufficient factual support for this claim. A plaintiff asserting a hostile work environment claim under Title VII must demonstrate that (1) the plaintiff is a member of a protected group; (2) the plaintiff endured unwelcome harassment; (3) the harassment was based on the plaintiff’s protected characteristic; (4) the harassment “was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment”; and (5) there is a basis for holding the employer responsible. See Miller v. Kenworth of Dothan, Inc., 277 F. 3d 1269, 1275 (11th Cir. 2002).

Courts must remain cognizant that Title VII does not operate as a “general civility code.”

See Reeves v. C.H. Robinson Worldwide, Inc., 594 F. 3d 798, 809 (11th Cir. 2010) (quoting

But applying this presumption would be premature at the motion to dismiss stage since King’s allegation about when he received the letter is taken as true. See id. (applying the three day presumption where the plaintiff “failed to allege in the complaint when he received the letter”).

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).

A workplace is only hostile where it 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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations and internal quotation marks omitted).

UPS argues King has not pled harassment that was sufficiently severe or pervasive.⁵ This element contains both an objective and a subjective component. Adams v. Austal, U.S.A., L.L.C., 754 F. 3d 1240, 1249 (11th Cir. 2014).

To satisfy the objective component, “the racial slurs allegedly spoken by co-workers had to be so ‘commonplace, overt and denigrating that they created an atmosphere charged with racial hostility.’” See Edwards v. Wallace Cmty. Coll., 49

F. 3d 1517, 1521 (11th Cir. 1995) (quoting EEOC v. Beverage Canners, Inc., 897 F. 2d 1067, 1068 (11th Cir. 1990)). Courts consider the frequency and severity of the conduct, whether the conduct was “physically threatening or humiliating, or a mere offensive utterance,” and whether the conduct unreasonably interfered with an employee’s work performance to determine whether a workplace was hostile. See Allen v. Tyson Foods, Inc., 121 F. 3d 642, 647 (11th Cir. 1997) (quoting Harris, 510 U.S. at 23). The Amended Complaint does not contain sufficient factual support to infer the requisite severity or pervasiveness. Because King alleges he had to leave one of his positions, the Court will assume the comments interfered with King’s work performance to some degree. The remaining factors, however, make clear the alleged conduct was neither severe nor pervasive.

If UPS had made this argument, the Court would reject it. King alleges Lieberman is his supervisor, and “[a]n employer is vicariously liable to an employee for a hostile work environment created by a supervisor.” Swindle v. Jefferson Cnty. Comm’n, 593 F. App’x 919, 923 (11th Cir. 2014).

The Court is satisfied King has pled this basis for liability, particularly given While the Amended Complaint alleges Lieberman’s conduct began in September of 2018, it is devoid of any allegations as to how frequent the comments were. And while King alleges the term “garbage can boy” was racially derogatory, courts have held more offensive remarks insufficiently severe. See, e.g., Alhallag v. Radha Soami Trading, LLC, 484 F. App’x 293, 296 (11th Cir. 2012) (affirming dismissal of a claim where the plaintiff was called “dirty” and told that she should “go to Hell” and “burn in Hell”); Thompson v. City of Miami Beach, Fla., 990 F. Supp. 2d 1335, 1340 (S.D. Fla. 2014) (dismissing claim where plaintiff was subjected to three racial slurs).

Finally, there is no allegation that the conduct was physically threatening.

Therefore, King has failed to allege a plausible hostile work environment claim. The Court will afford King one opportunity to amend his complaint. Woldeab v. Dekalb Cnty. Bd. of Educ., 885 F. 3d 1289, 1291 (11th Cir. 2018) (stating a court should afford pro se plaintiffs an opportunity to amend when a “more carefully drafted complaint might state a claim” (citation omitted)).

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that the Motion, [ECF No. 12], is GRANTED IN PART. The Amended Complaint, [ECF No. 11], is DISMISSED without prejudice with leave to amend. Plaintiff shall file a Second Amended Complaint on or before May 8, 2023. Failure to file a Second Amended Complaint on or before May 8, 2023, will result in the dismissal of this action without further notice. See FED. R. Civ. P. 41 (stating a court may dismiss an action when a plaintiff fails to prosecute the case or comply with a court order) DONE AND ORDERED in Miami, Florida, this 6th day of April, 2023.

UNITED STATES DISTRICT JUDGE