Opinion
SA-23-CV-01481-FB
02-15-2024
AARON GARZA, Plaintiff, v. PANDA RESTAURANT GROUP INC., Defendant.
ORDER
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE
Before the Court is the above-styled cause of action, which was referred to the undersigned for an order on Plaintiff's motion to proceed in forma pauperis (“IFP”) and a review of the pleadings pursuant to 28 U.S.C. § 1915(e). The undersigned therefore has authority to enter this order pursuant to 28 U.S.C. § 636(b)(1)(A).
The Court granted Plaintiff's motion to proceed IFP on December 8, 2023, but ordered that Plaintiff file a more definite statement to clarify the factual basis of Plaintiff's allegations. The Court ordered that Plaintiff's Complaint be docketed but that service be withheld pending the Court's review of the more definite statement. In that order, the Court also denied Plaintiff's motion to appoint counsel. Plaintiff timely filed a response to the Court's Order on December 21, 2023 [#8], as well as a second motion to appoint counsel [#7].
Pursuant to 28 U.S.C. § 1915(e), the Court is empowered to screen any civil complaint filed by a party proceeding IFP to determine whether the claims presented are (1) frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). The undersigned has reviewed Plaintiff's proposed Complaint and More Definite Statement pursuant to 28 U.S.C. § 1915(e) and finds that Plaintiff's pleadings state at least one non-frivolous claim.
28 U.S.C. § 1915(e) does not make frivolousness review mandatory before the docketing of a Complaint filed by a non-prisoner Plaintiff proceeding IFP. However, the San Antonio Division has a standing order requiring all Magistrate Judges to undertake such review in conjunction with disposing of a motion to proceed IFP.
Plaintiff's proposed Complaint asserts claims of employment discrimination against his former employer under Title VII of the Civil Rights Act of 1964. Plaintiff contends that he suffered discrimination and harassment from August 19, 2020, to January 30, 2021, when he was terminated. Plaintiff also appears to be alleging retaliation based on a previous complaint of harassment. Plaintiff alleges that he exhausted his administrative remedies prior to filing suit by filing a charge of discrimination with the Equal Employment Opportunity Commission and attached a Right to Sue letter issued on September 8, 2023, to his Complaint. Plaintiff timely filed his lawsuit on November 30, 2023.
Title VII prohibits discrimination “because of” a protected characteristic, namely race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Title VII does not make ordinary workplace tribulations actionable; rather, the alleged misconduct must have occurred because of a protected characteristic. Reine v. Honeywell Int'l Inc., 362 Fed. App'x 395, 397-98 (5th Cir. 2010). Plaintiff's proposed Complaint did not contain any factual allegations regarding the nature of the alleged discrimination or harassment, such that the Court was able to evaluate whether he had pleaded a plausible claim under Title VII. Plaintiff, however, selected the following protected categories in his form proposed Complaint: race, color, sex, religion, and national origin. Plaintiff also indicated on his Complaint that he is Hispanic, Brown in color, American, and an atheist. He further alleged he was subjected to slurs, physically assaulted, and had his hours cut.
The Court's Order for a More Definite Statement asked Plaintiff to provide more information about the specific slurs and assaults he experienced, who targeted him, how frequently it occurred, why he believed the harassment to be due to a protected characteristic, the contents of his complaints about the harassment to his supervisor, and the retaliation he believed he suffered due to the complaints. Plaintiff's More Definite Statement explained that his assistant manager and other employees frequently called him a “faggot,” “queer,” “beaner,” “darky,” “wetback,” and “a godless sinner” during most shifts. Plaintiff further alleges that his assistant manager punched him the back and that every White or Hispanic person working for Defendant experienced this kind of treatment. Plaintiff explains that he knows this treatment was due to his race, color, national origin, sex, and religion because when he first began working for Defendant, his manager thought he was Japanese and during this period he was treated much better. Once he told his manager he was Hispanic and not Asian, the mistreatment began. Plaintiff observed that all employees who were Asian and who were women were treated much better. Plaintiff states that he made a complaint about his manager to Human Resources on August 19, 2020. After the complaint, Plaintiff asserts his hours were cut and he was no longer treated as a shift leader. Plaintiff further states that his manager told him that “every time she didn't like someone she would cut their hours until they quit.” The Court finds that Plaintiff's proposed Complaint and More Definite Statement assert at least one non-frivolous claim. Therefore, Defendant should be served with this lawsuit. The Court will therefore order that Plaintiff's Complaint be served on the named Defendant in this lawsuit.
The Court will, however, again deny Plaintiff's motion to appoint counsel for the reasons stated in the Court's prior order. After Defendant has been served with the lawsuit and has the opportunity to respond to Plaintiff's Complaint, the Court will set this case for an initial pretrial conference. At that time, the Court will discuss the possibility of the appointment of counsel at a later date.
Finally, in light of the fact that Plaintiff is representing himself pro se in this action, the Court directs him to the following resources to assist him in prosecuting his case:
• The Federal Rules of Civil Procedure, available at: www.uscourts.gov/file/rules-civil-procedure
• This Court's Local Rules, available at https://www.txwd.uscourts.gov/court-information/lcr-civil-rules/
• The “Complete Pro Se Manual” which is available on the Court's website at: https://www.txwd.uscourts.gov/filing-without-an-attomey/pro-se-manual/.
Plaintiff is directed to familiarize himself with these resources. Also, although unrepresented Plaintiffs are held to a less stringent standard, they are nevertheless required to follow the rules that govern all litigants in federal court. Grant v. Cuellar, 59 F.3d 524, 524 (5th Cir. 1995). These rules include but are not limited to the rules and Court orders regarding conference with opposing counsel, following deadlines imposed by the rules and the Court's Scheduling Order, observing the response times for motions as set forth in Local Rule CV-7(e), and keeping the Court updated with a current address to ensure all filings are received. The Court will answer any questions Plaintiff has regarding the prosecution of his case and the Court's procedures at the Initial Pretrial Conference.
IT IS THEREFORE ORDERED that, if not already accomplished, within ten (10) days of the date of this Order, Plaintiff shall submit to the Clerk's Office a fully completed United States Marshal Service Form 285, including fully complete addresses, for Defendant and the United States Marshals Service shall serve Defendant with a copy of the Complaint and a copy of this order by certified mail, return receipt requested.
IT IS FURTHER ORDERED that Plaintiff's Supplemental Motion for Appointment of Counsel [#7] is DENIED.