Equal Emp't Opportunity Comm'n v. Bass Pro Outdoor World, LLC

• Decision Date: 23 October 2012
• Docket Number: Case No. 4:11–cv–03425.
• Citation: 884 F.Supp.2d 499
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BASS PRO OUTDOOR WORLD, LLC, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

884 F.Supp.2d 499

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.BASS PRO OUTDOOR WORLD, LLC, et al., Defendants.

Case No. 4:11–cv–03425.

United States District Court,

S.D. Texas,

Houston Division.

May 31, 2012.

Order on Subsequent Determination Oct. 23, 2012.

Gregory T. Juge, U.S. EEOC, New Orleans, LA, Konrad Batog, Robert D. Rose, U.S. EEOC, New York, NY, Rodolfo Lucio Sustaita, Timothy M. Bowne, EEOC, Houston, TX, for Plaintiff.

Michael W Johnston, Samuel M. Matchett, King Spalding LLP, Atlanta, GA, William Robert Burns, King and Spalding LLP, Houston, TX, for Defendants.

MEMORANDUM AND ORDER

KEITH P. ELLISON, District Judge.

Before the Court is Defendants' Motion to Dismiss First Amended Complaint (“Motion”). (Doc. No. 32.) After considering the Motion, all responses and replies thereto, and the applicable law, the Court concludes that the Motion should be GRANTED in part and DENIED in part.

I. FACTS

The Equal Employment Opportunity Commission (“EEOC”) brings this discrimination action against Bass Pro Outdoor World, LLC (“BPOW”), Tracker Marine, LLC (“Tracker”), and Bass Pro, Inc. (“BPI”) (collectively, “Defendants”) pursuant to Title VII of the Civil Rights Act of 1964 as amended, and Title I of the Civil Rights Act of 1991 (“Title VII”). (Doc. No. 23, Am. Compl. ¶¶ 3–4.) According to the EEOC, Defendants are an integrated enterprise, such that they are jointly and severally liable for discriminatory acts. ( Id. ¶ 4.) The EEOC claims that all conditions precedent to the institution of this lawsuit have been fulfilled. ( Id. ¶ 6.) The EEOC invokes this Court's jurisdiction pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. ( Id. ¶ 1.) The Amended Complaint accuses Defendants of denying employment to Black ¹ applicants for hourly and salaried positions at their retail stores based on their race. ( Id. ¶ 8.) According to the EEOC, Defendants have selected Black applicants at rates far below their availability in the relevant labor pools. ( Id.) For example, the EEOC avers, Defendants have produced data showing that out of 600 managers at their retail stores, only 10 to 15 were Black. ( Id.)

The EEOC asserts that Defendants also have a nationwide standard operating procedure of discouraging the hiring of Black applicants for several positions because of their race. ( Id.) The EEOC offers four examples of alleged incidents exemplifying Defendants' discriminatory practice. ( Id.) First, in or around the summer of 2006, a recently hired Human Resources Manager interviewed a qualified Black applicant for a position at a store in Louisiana. ( Id.) An Assistant General Manager, who had participated in that store's hiring decisions for three years, told the Human Resources Manager that the candidate “really doesn't fit our profile.” ( Id.) When the Human Resources Manager asked for an explanation, the Assistant General Manager replied, “We don't hire niggers ².” ( Id.) Second, in 2005, the General Manager of a store in Katy, Texas told the Human Resources Manager: “It is getting a little dark in here; you need to hire some white people.” ( Id.) Third, several times in late 2008, a department “Lead” in a Clarksville, Indiana store was seen destroying an employment application after he decided the name on the application “sounded like a ‘nigger name.’ ” ( Id.) The Lead employee opined that “niggers steal” and did not make good employees. ( Id.) Fourth, management-level individuals held a job fair for the Pearl, Mississippi store at a location far from the store, so as to discourage Blacks from applying for jobs. ( Id.) The EEOC maintains that Defendants' denial of employment to Black applicants constitutes a pattern or practice of discrimination. ( Id. ¶ 9.)

Additionally, the EEOC avers, Defendants have denied employment to Hispanic applicants for hourly and salaried positions at their retail stores nationwide because of national origin. ( Id. ¶ 11.) The EEOC claims that Defendants hire Hispanic applicants at rates far below their availability in the relevant labor pools. ( Id.) For example, Defendants have proffered data showing that of approximately 892 managers at their retail stores, only 33 were Hispanic. ( Id.) The EEOC asserts that Defendants' practice is nation-wide, as shown through several examples of alleged discriminatory actions. ( Id.) In 2005, in addition to directing a Human Resources Manager to “hire some white people,” the General Manager of the Katy, Texas store frequently used the words “wetback,” “Pedro,” and “Mexican” to refer to people of Hispanic origin. ( Id.) In late 2008, a Lead employee at the Clarksville, Indiana store stated, “Hispanics should be shot at the border by the border patrol.” ( Id.) A Lead employee at the Destin, Florida store stated in 2009 that Defendants have a practice of not hiring Hispanics or Blacks at that store. ( Id.) The EEOC urges that Defendants' denial of employment to Hispanic applicants constitutes a pattern or practice of discrimination against a class of Hispanic applicants. ( Id. ¶ 12.) According to the EEOC, Defendants have denied employment to Black and Hispanic applicants for varied positions, including cash clerk, cashier, customer relations associate, customer service representative, customer service representative credit, greeter, cashier/greeter, loss prevention, receiving clerk, sales associate, stocking associate, PACE employees, Santa's Wonderland, Lead, Team Lead, and all supervisory and managerial positions. ( Id. ¶ 14.)

The EEOC further claims that Defendants have, on a nationwide basis, unlawfully retaliated against employees who opposed practices that they reasonably perceived to violate Title VII. ( Id. ¶ 15.) According to the EEOC, Defendants' retaliatory acts against such employees have included: altering the terms, conditions, or privileges of their employment; bringing false allegations against them; pressuring them to withdraw their complaints; subjecting them to heightened scrutiny; and firing them or inducing their resignations. ( Id.) The EEOC offers two examples of alleged retaliatory acts by Defendants. ( Id.) First, in May 2008, a managerial employee at the Spanish Fort, Alabama store complained to a Regional Human Resources Manager that the store General Manager was discriminating against female employees. ( Id.) When the store General Manager heard about the complaint, he told his subordinate that she “better not complain about him again.” ( Id.) Later, the store Human Resources Manager fired the employee, explaining that the store General Manager had ordered her termination. ( Id.) A manager in the Clarksville, Indiana store stated that Defendants' corporate officer permitted a store manager and Human Resources manager to listen to Defendants' anonymous discrimination hotline. ( Id.) On one occasion, Defendants fired an employee in Clarksville, Indiana because she had a voice that sounded like one of the hotline callers. ( Id.)

The consequence of these practices, the EEOC insists, has been to deprive Black and Hispanic applicants of equal employment opportunities and to otherwise adversely affect their status as applicants because of their race or national origin. ( Id. ¶ 16.) Additionally, the EEOC avers, these practices have deprived employees of equal employment opportunities and otherwise adversely affected their status as employees because of their complaints or other activity protected by Title VII. ( Id.) The EEOC also accuses Defendants of failing to preserve records relevant to the determination of whether unlawful employment practices have been or are being committed, in violation of Section 709(c) of Title VII, 42 U.S.C. § 2000e–8(c). ( Id. ¶ 17.) Such records allegedly include: relevant employment applications and personnel files, tests administered to applicants, lists of job candidates, and electronic messages and audio and documentary records of efforts to contact the corporate complaint center. ( Id.) For example, the EEOC claims that, after receiving notice of the Commissioner Charge which underlies this action, Defendants allowed the destruction of hotline recordings containing discrimination complaints. ( Id.) The EEOC contends that the Defendants' unlawful employment practices were intentional and were done with malice or with reckless indifference to the federally protected rights of Black and Hispanic employee and applicants, as well as the federally protectedrights of employees who engaged in activities protected by Title VII. ( Id. ¶ 19.)

Defendants filed this Motion (Doc. No. 32), to which the EEOC filed a Response (Doc. No. 45). Defendants filed a Reply (Doc. No. 52).

II. LEGAL STANDARD

A. Rule 12(b)(6)

“To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiff's grounds for entitlement to relief-including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ ” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). That is, “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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). 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. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The plausibility standard is not akin to a “probability requirement,” but asks for more than a sheer possibility that a defendant has acted unlawfully. Id. A pleading need not contain detailed factual allegations, but must set forth more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action will...