Opinion
22-CV-00250-DC-RCG
09-19-2023
LINA JASSO, Plaintiff, v. MIDLAND-ODESSA TRANSIT MANAGEMENT, INC., d/b/a EZ-RIDER, Defendant.
REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE
RONALD C. GRIFFIN UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is Defendant Midland-Odessa Transit Management, Inc.'s (“Defendant” or “EZ-Rider”) Motion to Dismiss. (Doc. 8). This case is before the Court through a Standing Order pursuant to 28 U.S.C. § 636 and Appendix C of the Local Court Rules for the Assignment of Duties to United States Magistrate Judges. After due consideration of the parties' briefs and the case law, the Court RECOMMENDS that Defendant's Motion to Dismiss be DENIED. (Doc. 8).
I. Background
On December 1, 2022, Plaintiff Lina Jasso (“Plaintiff” or “Jasso”) filed her Original Complaint against EZ-Rider alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”). (See Doc. 1). Specifically, Jasso's causes of action include: 1) sex discrimination in violation of Title VII and 2) retaliation in violation of Title VII. Id. at 4-5. EZ-Rider is a Texas for-profit corporation doing business in the Midland-Odessa, Texas area. Id. at 2.
According to the complaint, Jasso is a woman who began driving buses for EZ-Rider in October 2006. Id. at 3. She was later promoted to street supervisor. Id. In 2020, another street supervisor, Brian Bridgeforth, “began a habit of adjusting or fondling his penis through his pants in the office in front of Jasso and the female dispatchers.” Id. Bridgeforth allegedly repeated this act “multiple times.” Id. Jasso reported the incidents to supervisors, one of whom addressed the behavior with Bridgeforth. Id. Bridgeforth then ceased the alleged conduct “for a time,” but later resumed his behavior. Id.
On or about January 4, 2021, Jasso reported Bridgeforth's conduct to Doug, her General Manager, and to Human Resources (HR). Id. One of Jasso's colleagues wrote a complaint detailing Jasso's allegations against Bridgeforth, which Jasso reviewed, signed, and submitted to HR. Id. According to Jasso, three other women were initially willing to sign the complaint, but later declined after speaking with HR. Id. at 3-4. In addition, Jasso claims that despite being questioned about the matter, EZ-Rider took no action against Bridgeforth. Id. at 4.
On January 14, 2021, Doug called Jasso into a meeting. Id. Doug accused Jasso of “trying to coerce the other women into signing the complaint against Bridgeforth.” Id. Doug then terminated Jasso's employment. Id.
On July 13, 2023, EZ-Rider filed the instant Motion to Dismiss. (Doc. 8). Jasso filed her Response on July 27, 2023. (Doc. 9). EZ-Rider files its Reply on August 3, 2023. (Doc. 10). Consequently, this matter is ripe for disposition.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim upon which relief can be granted.” 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). Federal Rule of Civil Procedure 8 requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Thus, to survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint need not include detailed facts to survive a Rule 12(b)(6) motion to dismiss. See Twombly, 550 U.S. at 555-56. However, a plaintiff must do more than recite the formulaic elements of a cause of action. See id. at 556-57. Additionally, the Court is not bound to accept as true a legal conclusion couched as a factual allegation in the complaint. See Iqbal, 556 U.S. at 678. Thus, although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead “specific facts, not mere conclusory allegations.” Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
III. Discussion
A. EZ-Rider's Motion to Dismiss Jasso's Hostile Work Environment Claim Under Title VII
EZ-Rider argues that Jasso failed to plausibly allege a claim for sex discrimination under Title VII. (Doc. 8 at 6-9). The Court disagrees with EZ-Rider for the reasons stated below.
Title VII outlaws sex discrimination by employers against employees. 42 U.S.C. § 2000e-2(a)(1). Unlawful sex discrimination can take the form of either a quid pro quo or a non-quid pro quo. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (citing 29 C.F.R. § 1604.11(a)). A non-quid pro quo sex discrimination claim is a claim for a hostile work environment. Id. Because Jasso did not plead any facts alleging a claim for quid pro quo sex discrimination (Doc. 1), the Court will construe her claim for sex discrimination as a claim for hostile work environment.
In addition, the parties' briefing indicated that neither side contemplated a discrimination claim other than one for hostile work environment. (Docs. 8-10).
At the motion to dismiss stage, a plaintiff need not make out a prima facie case of discrimination. Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013). However, a plaintiff must state a hostile work environment claim by pleading all facts necessary to establish the “ultimate elements.” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016).
A claim for hostile work environment is a type of disparate treatment claim. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A disparate treatment claim is a discrimination claim that relies on proving an employer's discriminatory motive. Pacheco v. Mineta, 448 F.3d 783, 787 (5th Cir. 2006).
To survive a motion to dismiss, a plaintiff pleading a claim for hostile work environment must plead two “ultimate elements”: 1) an adverse employment action, 2) taken against a plaintiff because of her protected status. See Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019). At summary judgment and at trial, a plaintiff is required to prove a more demanding legal standard. See id.; Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 399-400 (5th Cir. 2021). In cases where the plaintiff's claim depends on circumstantial evidence, it can be “helpful to reference” the heightened pleading standard required at summary judgment and at trial, but courts must not require plaintiffs to plead to that standard at a motion to dismiss. Cicalese, 924 F.3d 762 at 767. In addition, courts must not improperly raise the pleading standard by subjecting plaintiff's complaint to a “rigorous factual or evidentiary analysis” under the heightened pleading standard. Id.
At summary judgment or at trial, a plaintiff must prove he (1) belongs to a protected group; (2) was subjected to unwelcome harassment; (3) the harassment complained of was based on his membership in the protected group; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 399-400 (5th Cir. 2021).
Here, EZ-Rider mistakenly argues that Jasso's claim should be dismissed because she does not meet the heightened pleading standard required at summary judgment. (Doc. 8 at 6-9). The Court does not require Jasso to plead a prima facie case of hostile work environment at a motion to dismiss. See Cicalese, 924 F.3d 762 at 766-7 (requiring plaintiffs claiming disparate treatment to plead only the “ultimate elements” at this stage). Instead, Jasso need only plead that she suffered an adverse employment action taken against her because she is a woman. See id.
EZ-Rider fails to cite or distinguish the Fifth Circuit authority described in the preceding two paragraphs, except for the heightened pleading standard at summary judgment in Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 399-400 (5th Cir. 2021). (Doc. 8 at 6-9).
Although Cicalese refers to the McDonnell Douglas framework when it speaks of the heightened pleading standard, the appropriate analogy in this case would be to the elements of a hostile work environment claim stated in note 2. Cicalese, 924 F.3d 762 at 767. The “McDonnell Douglas framework” refers to the procedure for evaluating disparate treatment claims in hiring that the Supreme Court established in 1973. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Because the plaintiff is not claiming disparate treatment other than a claim for hostile work environment, the “McDonnell Douglas framework” as referenced in Cicalese does not apply. Cicalese, 924 F.3d 762 at 767.
Using the appropriate legal standard, Jasso meets her pleading burden at this stage. Jasso claimed that, after filing a formal complaint against a coworker whom she alleged “fondled” himself in the presence of women, EZ-Rider fired her. (Doc. 1 at 3-4). In essence, she pleaded that her employment was terminated because she is a woman. At a motion to dismiss, subjecting Jasso's factual claims to more extensive analysis is improper. See Cicalese, 924 F.3d 762 at 767.
For its part, EZ-Rider argues that some of Jasso's claims do not state a claim for hostile work environment without the use of an inference. (Doc. 8 at 8-9). For example, Jasso did not state that she was specifically targeted by the coworker because of her sex, or that he only fondled himself in the presence of women. (Doc. 1 at 3-4). In addition, Jasso ambiguously claimed that her coworker could have been merely “adjusting” rather than “fondling” himself. Id. But even if EZ-Rider is correct, the Court is still bound to draw all reasonable inferences in Jasso's favor at this stage. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Jasso's report of her male coworker's sexual misconduct in the presence of women, followed closely after by her firing, leads to a reasonable inference that she lost her job because of her coworker's harassment of women.
Thus, the Court RECOMMENDS that Defendant's Motion to Dismiss be DENIED as to Plaintiff's hostile work environment claim under Title VII. (Doc. 8).
B. EZ-Rider's Motion to Dismiss Jasso's Retaliation Claim Under Title VII
EZ-Rider next argues that Jasso failed to plausibly allege a claim for retaliation under Title VII. (Doc. 8 at 9-11).
Title VII prohibits retaliation against an employee for engaging in conduct protected by Title VII. 42 U.S.C. § 2000e-3(a). To establish a claim for retaliation under Title VII, the plaintiff must show that (1) she engaged in a protected activity; (2) there was a materially adverse action; and (3) a causal connection exists between the protected activity and the adverse action. Jenkins v. City of San Antonio Fire Dep't, 784 F.3d 263, 269 (5th Cir. 2015). “Protected activity” includes opposing “any practice made unlawful by Title VII.” 42 U.S.C. § 2000e-3(a). Opposition may take the form of filing a complaint. Rodriquez v. Wal-Mart Stores, Inc., 540 Fed.Appx. 322, 328 (5th Cir. 2013). Finally, “close timing between an employee's protected activity and an adverse action against him may provide the ‘causal connection' required to make out a prima facie case of retaliation.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).
Jasso easily meets the standard to state a claim for retaliation under Title VII. When Jasso filed a formal complaint with Human Resources on January 4, 2021, she engaged in protected activity. (Doc. 1 at 3-4); Rodriquez v. Wal-Mart Stores, Inc., 540 Fed.Appx. at 328 (explaining that filing a complaint is a protected activity). On January 14, 2021, EZ-Rider fired her, a materially adverse action. (Doc. 1 at 3-4). Finally, the Court infers a causal connection because only ten days separate her complaint and her firing. Swanson v. Gen. Servs. Admin., 110 F.3d at 1188 (permitting an inference of causal connection where “close timing” exists between the protected activity and adverse action).
Thus, the Court RECOMMENDS that Defendant's Motion to Dismiss be DENIED as to Plaintiff's retaliation claim under Title VII. (Doc. 8).
C. EZ-Rider's Motion to Dismiss Jasso's Complaint Based on Rule 4(m)
Lastly, EZ-Rider moves to dismiss Jasso's claims because she failed to serve EZ-Rider within the specified time. (Doc. 8 at 11-12). Rule 4(m) provides, “If a defendant is not served within 90 days after the complaint is filed, the court...must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m). The rule gives courts a choice: if the plaintiff fails to effect service within 90 days, the court may either extend the deadline for service or dismiss the suit without prejudice. Cassidy As Next Friend Cassidy v. United States, SA-22-CV-00652-XR, 2023 WL 4054630, at *4 (W.D. Tex. June 15, 2023) (citing Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996)).
Although EZ-Rider correctly states that Jasso did not complete service within 90 days after filing her complaint, the Court used its discretion under Rule 4(m) to extend the deadline for service, ordering Jasso to complete service within a specified time. Specifically, the Court ordered Jasso on June 9, 2023, to complete service by July 7, 2023. (Doc. 3). Jasso responded by timely serving EZ-Rider. (Docs. 4-6). Thus, Jasso cured her earlier violation of Rule 4(m). Because Jasso cured her earlier violation of Rule 4(m) by complying with an order extending the deadline for service, no basis exists to dismiss her suit under Rule 4(m).
Thus, the Court RECOMMENDS that EZ-Rider's Motion to Dismiss Jasso's Complaint based on Rule 4(m) be DENIED. (Doc. 8).
IV. Recommendation
Based on the circumstances present in this case, the Court RECOMMENDS that Defendant's Motion to Dismiss be DENIED. (Doc. 8).
Instructions for Service and Notice of Right to Appeal/Object
In the event that a party has not been served by the Clerk with this Report and Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is ORDERED to mail such party a copy of this Report and Recommendation by certified mail. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to this report must serve and file written objections within fourteen (14) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made; the District Judge need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court and serve the objections on all other parties. A party's failure to file such objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Judge. Additionally, a party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Judge. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).