Opinion
SA-23-CV-00156-XR
05-05-2023
JOHN F. SAUNDERS, Plaintiff v. HOUSTON FOAM PLASTICS, Defendant
ORDER ON REPORT AND RECOMMENDATION
XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE.
On this date the Court considered United States Magistrate Judge Elizbeth Chestney's Report and Recommendation in the above-numbered and styled case, filed March 28, 2023. ECF No. 6.
Plaintiff filed this action on February 9, 2023, alleging claims against his former employer, Houston Foam Plastics, for race, religion, age, and disability discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. See ECF No. 1-1. He did so seeking to proceed in forma pauperis (“IFP”). See ECF No. 1.
On February 23, 2023, the Magistrate Judge granted Plaintiff's motion to proceed IFP and ordered Plaintiff's proposed complaint to be docketed. ECF No. 4 at 1-2. However, the Magistrate Judge ordered that service be withheld pending further review of Plaintiff's pleadings, as the form complaint filed by Plaintiff did not contain any narrative of the facts underlying his case, making it difficult to screen under Section 1915(e). Id. at 2-3. The Magistrate Judge further noted that, although Plaintiff's complaint included a copy of the Right-to-Sue letter he had received from the Equal Employment Opportunity Commission (“EEOC”), dated January 3, 2023, the letter did not describe the causes of action raised in Plaintiff's original EEOC Charge, which was not attached to the complaint. Id. at 2. Thus, the Magistrate Judge directed Plaintiff to file a more definite statement on or before March 16, 2023, and to attach a copy of his EEOC Charge to enable to the Court to evaluate whether Plaintiff had properly exhausted his administrative remedies, warning that failure to do so could result in dismissal for want of prosecution. Id. at 3-5.
On March 28, 2023, in light of Plaintiff's failure to the respond to the order to supplement his pleading, the Magistrate Judge issued a Report and Recommendation recommending that Plaintiff's claims be dismissed for want of prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. ECF No. 6.
Any party who desires to object to a Magistrate Judge's findings and recommendations must serve and file his or her written objections within fourteen days after being served with a copy of the findings and recommendations. 28 U.S.C. § 636(b)(1). The Magistrate Judge's recommendation was mailed by certified mail on March 28, 2023. ECF No. 6. Plaintiff timely filed his “Response to Report and Recommendation” on April 13, 2023. ECF No. 9; see FED. R. CIV. P. 6(a), (d) (adding three days to response deadline for service by mail).
In the response, Plaintiff alleges that, on February 13, 2021, his supervisor, identified only as “Renee,” dropped in on his day off to direct Plaintiff and his co-workers, identified only as “David” and “Mario,” to stay late that evening. ECF No. 9 at 2. David and Mario informed Renee that they could not stay late. Id. Because the three men were working together in an assembly-line fashion to trim and pack the plastic materials, Plaintiff told Renee that if David and Mario left, he could not stay. Id. Nonetheless, Plaintiff stayed for an additional hour after David and Mario left before telling Renee that he was leaving. Renee warned Plaintiff that if he left, he would be written up on the following Monday. Id.
On Monday, Renee told Plaintiff that he “was not staying later anymore, just to work my 8 hours, and go home.” Id. He then explained that “everybody will be working 8 hours only[,] no more overtime” and ordered Plaintiff to leave at 1:30 p.m. that day-an hour before the end of his scheduled shift. Id. Plaintiff punched out at 1:30 p.m. The next day, when Plaintiff arrived at work, his co-workers asked him why he had left early. Id. Plaintiff learned that Renee had not spoken with any of his co-workers about the purported policy against overtime and went to speak with the manager, “Mack,” to ask why he was not working overtime. Id. Mack told Plaintiff that he had heard from Renee that Plaintiff no longer wanted to work overtime. Id. Plaintiff told Mack that Renee was lying and that it “would be crazy of [him] not to [be] working overtime” because he had just moved into a new home and purchased a new car. Id. at 3. When Mack confronted Renee about the lie, Renee allegedly said that he did not like Plaintiff and wanted to fire him. Id. Plaintiff alleges that Renee has “been looking for a way to fire me for a while,” and asserts that Renee was brought to Plaintiff's side of the warehouse to have him fired. Id. He further alleges that Renee “would come by my area and look at me and [say] that I am not a Christian, that I was full of it.” Id. at 3.
Plaintiff's “response” to the Report and Recommendation does not specifically object to any of the Magistrate Judge's findings or recommendation but provides factual allegations in support of his claims of employment discrimination. See ECF No. 9. The Court construes Plaintiff's response as a motion to late-file his response to Magistrate Judge's order for a more definite statement (ECF No. 4), and grants the motion. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (instructing courts to liberally construe pro se submissions).
DISCUSSION
I. Review of Report and Recommendation
A. Legal Standard
A party may serve and file objections to a Report and Recommendations within fourteen days. FED. R. CIV. P. 72(a), (b)(2). “Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive [sic] or general objections need not be considered by the district court.” Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982), overruled on other grounds by Douglass v. United States Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996).
Courts must review de novo any of the Magistrate Judge's conclusions to which a party has specifically objected. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”). Any sections that were not clearly objected to are reviewed for clear error to determine whether they are contrary to law. Id.; see also United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989), cert. denied, 492 U.S. 918 (1989).
B. Analysis
Given Plaintiff's failure to timely respond to the order for a more definite statement, the Magistrate Judge recommended dismissal under Rule 41(b) of the Federal Rules of Civil Procedure, which permits a district court to dismiss a case for want of prosecution or failure to comply with a court order. FED. R. CIV. P. 41(b); see also Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998) (a district court sua sponte may dismiss an action for failure to prosecute or to comply with any court order).
Because Plaintiff ultimately responded to the order for a more definite statement, the Court declines to dismiss the action for failure to comply with a court order under Rule 41(b). The Court observes, however, that Plaintiff failed to attach a copy of his EEOC Charge to his response and, accordingly, it is still impossible to determine whether he has properly exhausted his administrative remedies with respect to the claims alleged in the complaint. As discussed below, even assuming that Plaintiff properly exhausted his claims, the factual allegations in Plaintiff's response are insufficient to survive a Section 1915(e) review.
A. Legal Standard
“The language of § 1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure 12(b)(6).” Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998) (per curiam). Courts generally apply the Rule 12(b)(6) standard under that provision of the IFP statute. Such a dismissal therefore “turns on the sufficiency of the ‘factual allegations' in the complaint,” Smith v. Bank of Am., N.A., 615 Fed.Appx. 830, 833 (5th Cir. 2015) (per curiam) (quoting Johnson v. City of Shelby, 574 U.S. 10, 12 (2014) (per curiam)), as neither the IFP statute nor the Federal Rules of Civil Procedure “countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted,” Johnson, 574 U.S. at 11.
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for the dismissal of a complaint for “failure to state a claim upon which relief can be granted.” 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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 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.” Iqbal, 556 U.S. at 678. A claim for relief must contain: (1) “a short and plain statement of the grounds for the court's jurisdiction;” (2) “a short and plain statement of the claim showing that the pleader is entitled to the relief;” and (3) “a demand for the relief sought.” FED. R. CIV. P. 8(a). A plaintiff “must provide enough factual allegations to draw the reasonable inference that the elements exist.” Innova Hosp. San Antonio, L.P. v. Blue Cross & Blue Shield of Ga., Inc., 995 F.Supp.2d 587, 602 (N.D. Tex. Feb. 3, 2014) (citing Patrick v. WalMart, Inc.-Store No. 155, 681 F.3d 614, 617 (5th Cir. 2012)); see also Torch Liquidating Trust ex rel. Bridge Assocs. L.L.C. v. Stockstill, 561 F.3d 377, 384 (5th Cir. 2009) (“[T]he complaint must contain either direct allegations or permit properly drawn inferences to support every material point necessary to sustain recovery”) (internal quotation marks and citations omitted).
In considering a motion to dismiss under Rule 12(b)(6), all factual allegations from the complaint should be taken as true, and the facts are to be construed in the light most favorable to the nonmoving party. Fernandez-Montes v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993). Still, a complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. “‘[N]aked assertions' devoid of ‘further factual enhancement,'” and “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to the presumption of truth. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557); see also R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (stating that courts should neither “strain to find inferences favorable to plaintiffs” nor accept “conclusory allegations, unwarranted deductions, or legal conclusions”).
“Pro se complaints receive a liberal construction. Even so, mere conclusory allegations on a critical issue are insufficient[.]” Brown v. Tarrant Cnty., 985 F.3d 489, 494 (5th Cir. 2021) (quotations and citations omitted).
B. Analysis
1. Claims for Race and Religious Discrimination under Title VII
“Disparate-treatment discrimination addresses employment actions that treat an employee worse than others based on the employee's race, color, religion, sex, or national origin. In such disparate-treatment cases, proof and finding of discriminatory motive is required.” Pacheco v. Mineta, 448 F.3d 783, 787 (5th Cir. 2006). A plaintiff can prove discriminatory motive through either direct or circumstantial evidence. Portis v. First Nat'l Bank of New Albany, Miss., 34 F.3d 325, 328 (5th Cir. 1994). When a plaintiff builds a case on circumstantial evidence, a court analyzes the plaintiff's claim under the McDonnell Douglas framework. See Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). “Under this framework, the plaintiff must first create a presumption of discrimination by making out a prima facie case of discrimination.” Id.
The Supreme Court has distinguished the McDonnell Douglas evidentiary standard from pleading requirements. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002). Accordingly, “a plaintiff need not make out a prima facie case of discrimination [under McDonnell Douglas] 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). A district court therefore errs by requiring “a showing of each prong of the prima facie test for disparate treatment at the pleading stage[.]” Id. Still, plaintiffs must “plead sufficient facts on all of the ultimate elements of a disparate treatment claim to make [their] case plausible.” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016).
The Fifth Circuit has explained that there are two ultimate elements a plaintiff must plead to support a disparate treatment claim under Title VII: (1) an “adverse employment action,” (2) taken against a plaintiff “because of her protected status.” Raj, 714 F.3d at 331 (quoting Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 576 (5th Cir. 2004)); see also id. (explaining that a plaintiff must allege “facts, [either] direct or circumstantial, that would suggest [the employer's] actions were based on [the plaintiff's] race or national origin or that [the employer] treated similarly situated employees of other races or national origin more favorably”); Pacheco, 448 F.3d at 787 (a “discriminatory motive is required” for disparate treatment claims). Plaintiff has failed to adequately plead either element.
To begin, it is not clear that Plaintiff has suffered any adverse employment action. While Renee allegedly told Plaintiff that he “want[ed] to fire [him],” Plaintiff has not alleged that he was actually fired. To the extent that Plaintiff's claim is premised on loss of overtime, there is “no precedential authority in [the Fifth Circuit] establishing whether a denial of overtime constitutes an adverse employment action.” Brooks v. Firestone Polymers, L.L.C., 640 Fed.Appx. 393, 397 (5th Cir. 2016). Nevertheless, the Fifth Circuit has held that the denial of overtime can amount to an adverse employment action in some circumstances. See Johnson v. Manpower Pro. Servs., Inc., 442 Fed.Appx. 977, 982 (5th Cir. 2011) (holding that denial of overtime pay was an adverse employment action because it related to the employee's compensation); but see Hart v. Life Care Ctr. of Plano, 243 Fed.Appx. 816, 818 (5th Cir. 2007) (holding that a one-time denial of overtime did not rise to the level of an adverse employment action). Plaintiff does not allege any actual denial of overtime other than the implied loss of a single hour of overtime when Renee told Plaintiff to leave work an hour before the end of his shift. Plaintiff does not state that he has actually been denied overtime hours on an ongoing basis, but merely that Renee misled Mack about Plaintiff's willingness to work overtime.
Even assuming that Plaintiff was terminated or that his loss of overtime hours constituted an adverse employment action, neither the complaint nor the factual allegations in his response suggest that any adverse action was taken against him because of his race or religion. Plaintiff does not allege, for example, that overtime work that would ordinarily be assigned to him was given to someone outside of his race or religion. Nor does he identify a similarly situated employee who was not subject to reduction in overtime hours. His response asserts that Plaintiff is Black, Mario is Hispanic, and David is white. ECF No. 9 at 2. Neither Mario nor David is an appropriate comparator, however, because Plaintiff does not allege that his overtime hours were actually reduced in comparison to theirs. Indeed, there are no allegations in the complaint or the response suggesting that Mario and David worked any overtime during the relevant period. At best, the allegations suggest that Renee lied to Plaintiff, but not to Mario or David, about the availability of overtime. Unless Plaintiff's compensation was actually affected in comparison to similarly situated employee's, however, Renee's mere dishonesty toward and about Plaintiff's ability to work overtime does not constitute an adverse employment action.
With respect to his claim for religious discrimination under Title VII, Plaintiff fails to identify anyone's religious affiliation in support of his claim for religious discrimination under Title VII. See generally id. at 2-3. He does assert that Renee “would come by my area and look at me and [say] that I am not a Christian, that I was full of it.” Id. at 3. The Court cannot discern Plaintiff's protect class from this allegation. It is possible that Plaintiff belongs to some religion other than Christianity; it is equally possible that Plaintiff is a Christian and that Renee's statement was intended to insult Plaintiff by, e.g., questioning his devotion to his religion. Because he has failed to assert his own religious affiliation or identify an appropriate comparator outside of his religion, the Court cannot reasonably infer that any adverse employment action against Plaintiff was taken because of his religion. Subjective belief of discrimination, however genuine, and conclusory statements cannot be the basis of judicial relief. See Jones v. Gulf Coast Rest. Grp., Inc., No. 21-60052, 2021 WL 3465000, at *4 (5th Cir. Aug. 6, 2021).
To the extent Plaintiff seeks to assert a hostile work environment claim under Title VII based on Renee's allegedly harassing conduct, such conduct “must be ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'” Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Thus, courts consider “the frequency and severity of the alleged conduct, as well as whether ‘it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'” Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000) (quoting Harris, 510 U.S. at 23). “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview.” Harris, 510 U.S. at 21 (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). It is not enough to simply show that “colleagues were sometimes offensive and boorish.... Title VII does not impose a ‘general civility code' on employers.” West v. City of Houston, 960 F.3d 736, 743 (5th Cir. 2020) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). Renee's conduct toward Plaintiff does not appear to rise to the level of creating a hostile work environment. See, e.g., McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 564 (5th Cir. 1998) (“insensitive and rude” comments, “a few harsh words,” and “cold-shouldering” do not constitute a hostile work environment); Kang v. Bd. of Supervisors of La. State Univ., 75 Fed.Appx. 974, 977 (5th Cir. 2003) (poor performance evaluation and unjust criticism in front of plaintiff's peers does not constitute hostile working environment), cert. denied, 541 U.S. 903 (2004). Moreover, because Plaintiff failed to attach his EEOC Charge to his response to Report and Recommendation, it is not clear that he has exhausted his administrative remedies with respect to any hostile work environment claim.
Even liberally construed, Plaintiff's allegations as to the “critical issues” of establishing an adverse employment action taken and its discriminatory causes are insufficient under Rule 12(b)(6), Brown, 985 F.3d at 494. Accordingly, his claims for employment discrimination on the basis of his race and religion under Title VII must be dismissed pursuant to 28 U.S.C. § 1915(e).
2. Claim for Age Discrimination under the ADEA
The ADEA provides, in relevant part, “[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). The prima facie elements of a cause of action for violation of the ADEA are, the plaintiff: 1) is within the protected class; 2) is qualified for the position; 3) suffered an adverse employment decision; and 4) was replaced by someone younger or treated less favorably than similarly situated younger employees. Leal v. McHugh, 731 F.3d 405, 410-11 (5th Cir. 2013). The protected class includes individuals who are at least forty years old. See 29 U.S.C. §§ 631(a), 633a(a). In the context of a Rule 12(b)(6) motion, a plaintiff need not plead a prima facie case to state a plausible claim of age discrimination; however, the prima facie elements provide useful guideposts to analyze the sufficiency of the supporting factual allegations. Chhim v. Univ. of Tex., 836 F.3d 467, 470 (5th Cir. 2016); Besser v. Tex. Gen. Land Office, 834 Fed.Appx. 876, 882 (5th Cir. 2020).
Here again, it is not clear that Plaintiff has suffered an adverse employment action by either being terminated or denied overtime hours. Moreover, Plaintiff has not alleged that he is within the protected class-at least forty years old-or identified an appropriate comparator (i.e., a younger employee who replaced him or who was treated more favorably). Because Plaintiff has failed to allege the “critical issues” of establishing an adverse employment action that was caused by age discrimination, he has failed to state a claim for violation of the ADEA under Rule 12(b)(6), Brown, 985 F.3d at 494, and his claim will be dismissed pursuant to 28 U.S.C. § 1915(e).
CONCLUSION
Having reviewed the Report and Recommendation of the Magistrate Judge and Plaintiff's response the Court will REJECT the Magistrate Judge's recommendation to dismiss this case pursuant to Rule 41(b) for failure to prosecute or comply with a court order.
Nonetheless, the Court concludes that this action should be dismissed under 28 U.S.C. § 1915(e) as frivolous and for failing to state a claim. Accordingly, this case is DISMISSED pursuant to 28 U.S.C. § 1915(e). A final judgment pursuant to Rule 58 will follow.
The Clerk is DIRECTED to mail a copy of this Order and the Final Judgment to John F. Saunders at 5123 Round Table Dr., San Antonio, Texas 78218.
It is so ORDERED.