     Case: 16-30139      Document: 00513636794         Page: 1    Date Filed: 08/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                     16-30139                                   FILED
                                  Summary Calendar                        August 15, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
BOBBY D. WHITLOCK,

                                                 Plaintiff - Appellant
v.

LAZER SPOT, INCORPORATED,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:15-CV-1814


Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Bobby D. Whitlock (“Whitlock”) appeals the district
court’s dismissal of his complaint for failure to state a claim upon which relief
can be granted under Federal Rule of Civil Procedure 12(b)(6). We AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 16-30139
      I.    BACKGROUND
      Whitlock was a truck driver employed by Lazer Spot, Inc. (“Lazer Spot”),
in Monroe, Louisiana from November 2012 until October 4, 2013. Lazer Spot
terminated Whitlock’s employment, stating that he had driven away from a
loading dock while the light was red. Whitlock, who is African American, filed
a complaint with the Equal Employment Opportunity Commission, which
issued a right-to-sue letter on March 10, 2015.
      On June 8, 2015, Whitlock, represented by counsel, filed a complaint in
district court, alleging claims of racial discrimination and hostile work
environment under Title VII of the Civil Rights Act. See 42 U.S. § 2000e et seq.
Lazer Spot filed a motion to dismiss under Rule 12(b)(6), arguing that
Whitlock’s conclusory allegations failed to state a claim. The magistrate judge
issued a report and recommendation to grant the motion to dismiss. The
district court accepted the recommendation and granted the motion to dismiss,
opining that Whitlock’s factual allegations failed to state a claim as a matter
of law either for discriminatory discharge or a hostile work environment.
Whitlock now appeals.
      II.   STANDARD OF REVIEW
      We review de novo a district court’s grant or denial of a Rule 12(b)(6)
motion, “accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th
Cir. 2007). However, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009) (citation omitted). “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.’” Id. (citation omitted). 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
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                                  No. 16-30139
misconduct alleged.”      Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states
a plausible claim for relief will . . . be a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at
1950.
        III.   DISMISSAL FOR FAILURE TO STATE A CLAIM
        Whitlock contends that the district court erred in granting the motion to
dismiss his complaint for failure to state a claim.             Rule 12(b)(6).   In his
complaint, Whitlock alleged a claim of racial discrimination. Our precedent is
clear that Whitlock “need not make out a prima facie case of discrimination in
order to survive a rule 12(b)(6) motion to dismiss for failure to state a claim.”
Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013) (citing Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 510-12 (2002)). The ultimate question in a Title
VII discrimination case is “’whether a defendant took the adverse employment
action against a plaintiff because of her protected status.’” Id. (quoting Kanida
v. Gulf Coast Med. Personnel LP, 363 F.3d 568, 576 (5th Cir. 2004)).
Accordingly, we must determine whether Whitlock’s complaint sufficiently
alleged that Lazer Spot terminated him because he is African American.
        Whitlock’s   complaint   alleged       that   Lazer     Spot   terminated   his
employment because he “pulled away from a loading dock while the light was
red.” Whitlock also alleged that the purported reason for termination was
“untrue and just a cover-up for the racial discrimination. White employees
who commit infractions more serious than the one [Whitlock] is accused [of]
committing are not terminated.” Further, Whitlock’s complaint alleged that
he “was punished for infractions that white employees were not punished for.
The discrimination within the workplace create[d] a hostile work environment
that was difficult for [him] to endure. [Lazer Spot’s] actions caused stress
related problems. A white employee was allowed to ride around in a pickup
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                                  No. 16-30139
truck without doing his job duties but given credit for the work done by African-
American employees.”
      These conclusory allegations do not contain sufficient content to allow us
to draw the inference that Lazer Spot is liable for terminating Whitlock’s
employment because of his race. The complaint fails to specify the white
employees’ work violations. It also fails to allege the white employees’ jobs at
Lazer Spot.   Because the complaint does not have facial plausibility with
respect to the discriminatory discharge claim, the district court did not err in
granting the motion to dismiss.
      The district court also ruled that Whitlock’s complaint failed to state a
claim for a hostile work environment. “In determining whether a workplace
constitutes a hostile work environment, courts must consider the following
circumstances:   ‘the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.’”   Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)
(quoting Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000)). Further, to
constitute a hostile work environment claim, the “unlawful employment
practice must have occurred ‘over a series of days or perhaps years and, in
direct contrast to discrete acts, a single act of harassment may not be
actionable on its own.’” Mack v. John L. Wortham & Son, L.P., 541 F. App’x
348, 356-57 (5th Cir. 2013) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 115 (2002)).
      Here, as set forth previously, the complaint alleged that Whitlock “was
punished for infractions that white employees were not punished for. The
discrimination within the workplace create[d] a hostile work environment that
was difficult for [him] to endure. The defendant’s actions caused stress related
problems. A white employee was allowed to ride around in a pickup truck
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                                No. 16-30139
without doing his job duties but given credit for the work done by African-
American employees.”
     Whitlock’s complaint wholly fails to allege facts that demonstrate that
he was repeatedly subjected to harassment that was linked to his race. We
agree with the district court that the complaint fails to state a claim with
respect to a hostile work environment.
     For the above reasons, the district court’s judgment is AFFIRMED.




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