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

Decision Date18 March 2013
Docket NumberCase No. 4:11-CV-3425
CourtU.S. District Court — Southern District of Texas

Before the Court is Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint ("SAC"). (Doc. No. 76.) 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.


The Court reviewed the facts of this case in a prior Memorandum and Order (Doc. No. 53) and will not do so again. The Equal Employment Opportunity Commission ("EEOC") brings this discrimination action against Bass Pro Outdoor World, LLC ("BPOW"), and Tracker Marine, LLC ("Tracker") (collectively, "Defendants"). The EEOC alleges that Tracker and BPOW are both owned and controlled by Bass Pro, Inc. The EEOC brings this suit 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. 61, at 1-2.) Defendants assert in their Motion to Dismiss the Second Amended Complaint that the EEOC cannot allege aplausible claim under § 7061 and § 7072 . with regard to discriminatory hiring practices, retaliation, or record keeping.

A. Discriminatory Hiring Claim

The EEOC alleges that Defendants have a nationwide standard operating procedure of denying employment to Black and Hispanic applicants for many hourly and salaried positions at their retail stores, because of their race. Id. According to the EEOC, Defendants have hired Black and Hispanic applicants at rates far below their availability in the relevant labor pools. Id. The EEOC alleges that Defendants' operating procedure of discriminating against minorities emanates from Defendants' top management—specifically, from owner and founder, Johnny Morris. Plaintiff alleges that, in a meeting of Store General Managers in 2004 or 2005, in response to a question concerning racial quotas, Morris said, "this company will never have a quota system because that's not the kind of people I want working in my stores." Id. at ¶ 42. The EEOC claims that Defendants' hiring preference for Whites was followed by Store Managers nationwide, and that Managers nationwide were asked to hire applicants who fit "the Profile." Id. at ¶ 43-44. Defendants allege that these policies were communicated by corporate Human Resource managers, such as Michael Rowland and Brent Day, to other managers who work for BPOW.

Next, the EEOC provides examples from ten states to establish that BPOW stores are engaging in discriminatory hiring practices nationwide. Id. at ¶ 78-125. The EEOC compares the percent of Black and Hispanic employees hired to the percent of Black employees in the respective counties that have BPOW stores. Id. at ¶ 126-176; 362-409. The EEOC identifiesindividual Black and Hispanic applicants by name whom Plaintiff claims were denied employment based on their race. Id. at ¶ 179 to 361; ¶ 412-429.

B. Retaliation Claim

Second, 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. Defendants' retaliatory acts against such employees have included, but are not limited to, altering the terms, conditions, or privileges of their employment; bringing false allegations against them; subjecting them to heightened scrutiny; subjecting them to a retaliatory hostile work environment; and firing or constructively discharging them, or otherwise inducing their resignations.

C. Record-keeping claim

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.


Rule 12(b)(6) provides for dismissal of a complaint for "failure to state a claim for which relief can be granted." Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, a court must "accept the complaint's well-pleaded facts as true and view them in the light most favorable to the plaintiff." Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). A claim "does not need detailed factual allegations" but must provide a party'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), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007).

A district court will dismiss a claim under Fed. R. of Civ. P. 12(b)(6) only if "it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994). However, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1992). A complaint will survive a motion for dismissal only if the plaintiff pleads sufficient facts to state a claim for relief that is facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); Twombly, 550 U.S. at 570.

A. Discriminatory Hiring Claim Under § 706

Although Plaintiff's Second Amended Complaint does not differentiate between the § 706 and § 707 claims, the Court will do so. Claims under § 706 and § 707 are distinct pursuant to Title VII, and have differing statutory structures, including the availability of jury trial and equitable remedies.3

"A § 706 claim involves the rights of aggrieved individuals challenging unlawful employment practices on an individual or class-wide basis, whereas a § 707 claim involves a pattern-or-practice of systemic discrimination challenging widespread discrimination through a company on a group basis." Scolari Warehouse Mtks., Inc., 488 F.Supp.2d at 1143 (citing EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F.Supp. 1059, 1084 (C.D. Ill. 1998); General Telephone, 446 U.S. at 324) (emphasis in original). Additionally, "the Teamstersframework generally applies to pattern or practice claims brought under § 707, whereas the McDonnell Douglas framework applies to individual claims brought under § 706." JBS USA, LLC, 2011 WL 3471080, at *4 (citing Serrano v. Cintas Corp., 711 F.Supp.2d 782, 794 (E.D. Mich. 2010)).

The EEOC has worked diligently to list almost two hundred potential claimants who, according to Plaintiff, are Black and Hispanic applicants who have been denied employment by Defendants. The Court recognizes that the Complaint has evolved since Plaintiff filed its First Amended Complaint, which the Court considered in its last Motion to Dismiss. The Court finds that the Plaintiff has met the pleading standard articulated in Swierkiewicz, Twombly, and Iqbal.

The framework for evaluating a Title VII discrimination claim depends on the type of evidence presented in support of the claim. The first method a plaintiff may use to prove disparate treatment is direct evidence, defined as "evidence that, if believed, proves the fact of intentional discrimination without inference or presumption." Woodhouse v. Magnolia Hosp., 92 F.3d 248, 252 (5th Cir.1996). The clearest example of "direct evidence" of discrimination would be "evidence that can be interpreted as an acknowledgment of discriminatory intent by the defendant or its agents." Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir.1994); see also Mooney v. Aramco Services Co., 54 F.3d 1207, 1217-18 (5th Cir. 1995) (analyzing characteristics of direct evidence). Direct evidence in this context is not the converse of circumstantial evidence. Rather, direct evidence is evidence "showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated" the adverse employment action. See Moore v. U.S. Dep't of Agric., 55 F.3d 991, 995 (5th Cir.1995) (noting that because the plaintiffs presented directevidence of discriminatory animus, they "are entitled to bypass the McDonnell Douglas burden-shifting framework commonly applied in discrimination cases and proceed directly to the question of liability"). "In the rare situation in which the evidence establishes that an employer openly discriminates against an individual it is not necessary to apply the mechanical formula of McDonnell Douglas to establish an inference of discrimination.' " Kendall v. Block, 821 F.2d 1142, 1145 (5th Cir.1987) (quoting Ramirez v. Sloss, 615 F.2d 163, 168 (5th Cir.1980)).

The Court considers whether the comment made by Morris could be considered direct evidence of discrimination. Plaintiff alleges that, in a meeting of Store General Managers in 2004 or 2005, Morris answered a question concerning racial quotas by stating "this company will never have a quota system because that's not the kind of people I want working in my stores." (Doc. No. 61, ¶ 42 [SAC].) Defendants' hiring preference for Whites was known as "the Profile" and Plaintiff provides a few examples in which Human Resources Managers referred specifically to the Profile as a directive to hire White candidates. (Doc. No. 61, ¶ ¶ 48, 50 [SAC].)

Defendants argue that Morris' comment was simply suggesting that quotas are illegal. In Togerson v. City of Rochester,643 F.3d 1031, 1044-45 (8th Cir.), the court held there was no discriminatory animus reflected in a city commissioner's statement that he would not have recommended a grant had he known it included a requirement of hiring minorities and women. The Eighth Circuit observed that such a statement was entirely consistent with Title VII. Morris' statement, however, is distinguishable from...

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