Sorto v. Autozone, Inc., 072120 FED4, 19-1278

Docket Nº19-1278
Opinion JudgeNIEMEYER, CIRCUIT JUDGE
Party NameLUIS SORTO, Plaintiff - Appellant, v. AUTOZONE, INC., Defendant-Appellee.
AttorneyArinderjit Dhali, DHALI PLLC, Washington, D.C., for Appellant. Laurie M. Riley, Miami, Florida, Tracy E. Kern, JONES WALKER LLP, New Orleans, Louisiana, for Appellee.
Judge PanelBefore NIEMEYER, WYNN, and FLOYD, Circuit Judges. WYNN, Circuit Judge, concurring in the judgment, dissenting in part:
Case DateJuly 21, 2020
CourtUnited States Courts of Appeals, Court of Appeals for the Fourth Circuit

LUIS SORTO, Plaintiff - Appellant,

v.

AUTOZONE, INC., Defendant-Appellee.

No. 19-1278

United States Court of Appeals, Fourth Circuit

July 21, 2020

UNPUBLISHED

Submitted: March 18, 2020

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. (8:17-cv-02234-RWT)

Arinderjit Dhali, DHALI PLLC, Washington, D.C., for Appellant.

Laurie M. Riley, Miami, Florida, Tracy E. Kern, JONES WALKER LLP, New Orleans, Louisiana, for Appellee.

Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion, in which Judge Floyd joined. Judge Wynn wrote an opinion concurring in the judgment, and dissenting in part.

Unpublished opinions are not binding precedent in this circuit.

NIEMEYER, CIRCUIT JUDGE

After Luis Sorto, a native of El Salvador, was fired from his position as a sales associate with AutoZone, Inc., he commenced this action against AutoZone for discrimination, harassment, and retaliation under federal and Maryland state law. The district court granted AutoZone's motion to dismiss two hostile work environment counts of the complaint but denied its motion as to the remaining counts. As to the remaining counts, however, it directed Sorto's counsel to file an amended complaint complying with applicable pleading requirements and certain specific instructions. Because counsel failed, after several attempts and court warnings, to comply with court directives and pleading requirements, the court dismissed the remaining counts with prejudice. Outlining in detail its reasons for doing so and expressing regret for the necessity of its action, the court summarized, "I just see complete indifference and defiance of the court's order. I've laid out what needs to be done to comply and what I've gotten is further noncompliance."

From the district court's dismissal orders, Sorto appealed, challenging each order. For the reasons given, we affirm.

I

For purposes of this appeal, the facts alleged in Sorto's complaint are taken as true.

Sorto began his employment with AutoZone in October 2011 as a sales associate in Newport News, Virginia. Shortly after he began, the store was robbed while Sorto was working, and the store manager accused Sorto of being a conspirator in the robbery. In the months that followed, the manager blamed Sorto when items were misplaced in the store, commenting, "I know how all you Latinos are."

Some six months later - in the summer of 2012 - another AutoZone manager remarked that Sorto "stinks and smells like sheep," which sparked a pattern of sheep-related mockery that continued throughout Sorto's employment at the Newport News store. His managers began to call Sorto "sheep" or "Luis Sheep," used a sheep hand puppet to call him over, and changed his nametag to read "Luis Sheep." Other employees also posted pictures of sheep on the company board and started calling Sorto "sheep" or another variant, "Luis Serta-Sorto Sheep," apparently referring to the Serta mattress company's use of sheep in its advertising and the closeness of the names "Sorto" and "Serta." Unrelatedly, employees also called Sorto, "Hello Kitty."

In August 2015, Sorto was transferred to the AutoZone store in Laurel, Maryland. Shortly after he was transferred, he sustained a wrist injury during a workplace accident. Sorto's managers were displeased when Sorto requested medical leave to receive treatment for the injury and declined to assign him to light duty, although Sorto's doctors recommended that he avoid heavy lifting.

While in the Laurel store, Sorto again began to receive verbal insults from other employees. Particularly, in the spring of 2016, a newly-hired employee started calling him "gay," "princess," "Hello Kitty," and "a Mexican" due to Sorto's shoulder-length hair, explaining that "only Mexican females have long hair." Other employees yelled to him, "Orale." While Sorto did not explain in his complaint nor in any subsequent briefing what "Orale" meant, according to Wikipedia, it is "a common Spanish interjection in Mexican Spanish slang" that is used in the United States "as an exclamation expressing approval or encouragement." Órale, Wikipedia (last accessed June 15, 2020), https://en.wikipedia.org/wiki/%C3%93rale. Although Sorto reported these various comments to the store's assistant manager and to a human resources representative, AutoZone took no action. And because of this inaction, Sorto informed his managers that he would be absent from work on April 27, 2016, in order to file a complaint with the U.S. Equal Employment Opportunity Commission. The following week, Sorto's employment was terminated.

Over a year later, in August 2017, Sorto commenced this action alleging claims of race discrimination, hostile work environment and harassment, and retaliation, in violation of 42 U.S.C. § 1981 and the Maryland Fair Employment Practices Act ("MFEPA"); failure to accommodate and disability retaliation, in violation of MFEPA; and interference, in violation of the Family and Medical Leave Act ("FMLA").

AutoZone filed a motion to dismiss the complaint, except for Sorto's claims that he was fired due to race-based discrimination and in retaliation for reporting harassment. With respect to Sorto's hostile work environment claims - Counts II and V - the district court granted the motion to dismiss at a hearing on June 6, 2018. It found that many of the allegations in the complaint fell outside the statute of limitations period for harassment under § 1981 and MFEPA, and, with respect to those that may have fallen within the limitations period, it concluded that the allegations did not allege harassment based on race. It denied the motion as to the remaining counts of the complaint. Nonetheless, it struck the entire complaint because Sorto had repeatedly failed to comply with pleading requirements. The court directed Sorto to file a second amended complaint in compliance with the rules, explaining specifically what he was required to do. While Sorto filed a second amended complaint on June 21, 2018, he continued to violate the court's directives. AutoZone filed a motion to strike the offending allegations or to dismiss the entire complaint for failure to comply with the court's orders and pleading rules. At a hearing on February 22, 2019, the court explained in detail how Sorto's second amended complaint failed to comply with the court's orders and applicable pleading rules. While the court acknowledged that dismissal of the complaint with prejudice was "an extreme sanction to be examined carefully," it determined that this was the appropriate response in the face of "complete indifference and defiance of the court's order." Accordingly, it dismissed the entire complaint with prejudice.

From the district court's orders of dismissal dated June 6, 2018, and February 22, 2019, Sorto filed this appeal.

II

Sorto contends first that the district court erred in dismissing Counts II and V of his complaint, which purported to state hostile work environment claims under federal and state law. As relevant to those counts, Sorto alleged that while at the Newport News store from 2011 to 2015, his manager called him a Latino while implying that Latinos were untrustworthy; his managers and fellow employees repeatedly referred to him as a sheep; and fellow employees called him "Hello Kitty." And he alleged that while at the Laurel store, an employee called Sorto "gay," "princess," "Hello Kitty," and "Mexican," referring to his long hair. Other employees also yelled "Orale" at him. The district court concluded that, with respect to any alleged act that was within the statute of limitations, the complaint failed to state a claim upon which relief could be granted under either § 1981 or the MFEPA.

To state a claim under either statute, a plaintiff is required to set forth sufficient allegations to demonstrate that there was "(1) unwelcome conduct; (2) that is based on the plaintiff's race; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (cleaned up) (quoting Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011)). Harassment is considered sufficiently severe or pervasive so as to alter the terms or conditions of employment if a workplace is "permeated with discriminatory intimidation, ridicule, and insult." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (cleaned up).

We conclude that the allegations are insufficient as a matter of law to demonstrate liability under these statutes, even if we assume that all were timely. The isolated references to Sorto as a Latino, implying that he was untrustworthy, and Mexican, because of his long hair, were made over 4 years apart and in two different workplace locations and thus cannot be the basis for a workplace "permeated with discriminatory intimidation." See Harris, 501 U.S. at 21. And the remaining terms he alleged were used to insult him - sheep, Hello Kitty, gay, and princess - cannot be attributable to race-based discrimination. Neither sheep nor the fictional Japanese character Hello Kitty are commonly associated with people of Hispanic origin, and references to them, though unwelcome and quite possibly harassing, do not provide evidence of race-based discrimination. Likewise, comments implying that Sorto was effeminate or gay were unrelated to race. And with respect to the use of "Orale," Sorto has not provided any basis from which to infer that the word was even offensive. Indeed, all indications are just the opposite. Even if its...

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