Opinion
1-23-CV-1511-DII
05-22-2024
JAMES E. RUSSELL, Plaintiff, v. REANNA RIVERA and TXTAG, Defendants.
ORDER AND REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
MARK LANE, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
Before the court are Defendant Reanna Rivera's Motion to Dismiss (Dkt.4), Pro Se Plaintiff James E. Russell's Motion for Sanctions (Dkt. 9) and Motion to Compel (Dkt. 18), and all related briefing. Having considered the pleadings, the relevant case law, and the entire case file, the undersigned submits the following Report and Recommendation to the District Court.
The motions were referred by United States District Judge Robert Pitman to the undersigned for a Report and Recommendation as to the merits or disposition, as appropriate, pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. See Text Orders dated January 2, 2024, January 30, 2024, and February 16, 2024.
I. Background
Russell was a TxTag employee. Dkt. 1-1 (Compl.) at 5. He asserts that on September 16 and 17, 2022, his manager, Rivera gave him verbal warnings for taking brief restroom breaks during the last hour of work, during which breaks are not allowed. Id. He states that he has high blood pressure and anemia and drinks a lot of fluids to help his conditions. Id. He also states that on September 20, 2022, he contacted manager Mike Gonzales via email to notify Gonzales of his need to take a sick day. Id. Gonzales informed Russell that Russell did not have any available paid sick leave and he would need to follow the “call out process” and it his absences would be an “attendance occurrence.” Russell submitted a “call out” to the appropriate channels. On September 22, 2022, Rivera reached out to him because he had missed three days of work. She informed him that his absence on September 21 was considered a “No Call No Show” and September 22 would be as well if she did not receive an update. Id. Russell states he was suspended from work on October 4, 2022 and “never called back.” Id. at 6. He considers this a constructive termination. Id.
Russell also asserts that he “suffered a stroke later on,” which the undersigned understands to mean after his employment ended. See id.
Russell names his supervisor Rivera and TxTag as defendants. Rivera points out that TxTag has not been served. Dkt. 1 at ¶ 3. Russell asserts claims under the Emergency Paid Sick Leave Act and OSHA's restroom break laws.
Rivera has moved to dismiss under Rule 12(b)(6), arguing that the Emergency Paid Sick Leave Act (“EPLSA”) expired in December 2020 and Russell cannot bring a private claim under OSHA. Dkt. 4. Russell moves for sanctions because Rivera's counsel would not agree to being recorded during their Rule 26(f) conference, and therefore that conference did not occur. Dkt. 9. Russell has also filed a motion to compel discovery. Dkt. 18.
II. Motion to Dismiss
A. Standard of Review
When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6) the complaint must be liberally construed in favor of the plaintiff and all facts pleaded therein must be taken as true. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Although Federal Rule of Civil Procedure 8 mandates only that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” this standard demands more than unadorned accusations, “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Bell Atl. v. Twombly, 550 U.S. 544, 555-57 (2007). Rather, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. The Supreme Court has made clear this plausibility standard is not simply a “probability requirement,” but imposes a standard higher than “a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The standard is properly guided by “[t]wo working principles.” Id. First, although “a court must ‘accept as true all of the allegations contained in a complaint,' that tenet is inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Second, “[d]etermining 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 679. Thus, in considering a motion to dismiss, the court must initially identify pleadings that are no more than legal conclusions not entitled to the assumption of truth, then assume the veracity of well-pleaded factual allegations and determine whether those allegations plausibly give rise to an entitlement to relief. If not, “the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
B. Analysis
The EPLSA required that certain employers provide paid sick leave to their employees from its effective date until December 31, 2020. EPLSA § 5109 (“Sunset. This Act, and the requirements under this Act, shall expire on December 31, 2020.”); see Kovacevic v. Am. Int'l Foods, Inc., Case No. 1:21-cv-72, 2022 WL 2589864, at *5 (W.D. Mich. July 8, 2022) (recognizing that the EPLSA “has expired”). Thus, the EPLSA expired before the incidents that are at issue here. Accordingly, Russell has failed to state a claim under the EPSLA.
Rivera argues Russell's OSHA claim fails for three independent reasons. First, he has no private right of action under OSHA. Second, he failed to exhaust his administrative remedies. And third, the OSHA provision his claim is based on only applies to agricultural establishments. Russell argues he has exhausted his administrative remedies by filing an EEOC complaint and he attaches evidence of filing complaints with OSHA. Rivera replies that even assuming Russell exhausted his administrative remedies, his claims are still barred for the other reasons they presented. Russell's surreply does not overcome these arguments.
Russell asserts Rivera violated OSHA § 1928.110, but this section only applies to “agricultural establishment[s] where eleven (11) or more employees are engaged on any given day in hand-labor operations in the field.” This statute is inapplicable to Russell's work at TxTag. Additionally, there is no private right of action for OSHA violations. Valdez v. Joy Techs., 29 F.3d 623 (5th Cir. 1994) (“Albeit in a different context than that presented by the instant case . . ., the Supreme Court, in Cuyahoga Valley Railway Co. v. United Transp. Union, 474 U.S. 3, 6 (1985), stated that it is ‘clear that enforcement of the [Occupational Health and Safety] Act is the sole responsibility of the Secretary [of Labor].'”); see also George v. Aztec Rental Center, Inc., 763 F.2d 184, 186-87 (5th Cir. 1985) (no private right of action for retaliatory discharge under OSHA); see also Champlin Petroleum Co. v. OSHA Review Comm'n, 593 F.2d 637, 640 (5th Cir.1979) (detailing Secretary's burden in establishing violation of “general duty clause” of § 654); Haddix v. CentraSol, LLC, 2021 WL 3476811, at *4 (N.D. Tex. July 21, 2021) (“the Fifth Circuit has made clear that [OSHA] §§ 654 and 660(c) do not provide private causes of action”).
Accordingly, the undersigned will recommend the District Court dismiss Russell's claims because he has failed to state a claim for which relief can be granted.
III. Motion for Sanctions and Motion to Compel
In light of the undersigned's recommendation that Russell's claims against Rivera be dismissed, the court will deny these motions.
IV. Orders and Recommendation
The undersigned RECOMMENDS that the District Court GRANT Defendant Reanna Rivera's Motion to Dismiss (Dkt.4).
The court DENIES Plaintiff James E. Russell's Motion for Sanctions (Dkt. 9) and Motion to Compel (Dkt. 18).
V. Objections
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996)(en banc).