Phillips v. Starwood Hotels & Resorts Worldwide, Inc.
Filing
17
ORDER and REASONS re: 8 Motion to Dismiss for Failure to State a Claim. Starwood's motion is GRANTED, and Phillips' complaint is DISMISSED. Signed by Chief Judge Sarah S. Vance on 10/9/13. (plh, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LAVERNE M. PHILLIPS
CIVIL ACTION
VERSUS
NO: 13-3469
STARWOOD HOTELS & RESORTS
WORLDWIDE, INC.
SECTION: R(1)
ORDER AND REASONS
Defendant Starwood Hotels & Resorts Worldwide, Inc.
("Starwood") moves for partial dismissal of plaintiff Laverne
Phillips' complaint.1 For the following reasons, Starwood's
motion is GRANTED, and Phillips' complaint is DISMISSED.
I.
Background
Phillips, who is white and over 60 years old, filed a charge
of discrimination with the Equal Employment Opportunity
Commission ("EEOC").2 Her EEOC charge alleges that Starwood, as
owner and operator of the Sheraton New Orleans Hotel,
discriminated against Phillips on bases of race, sex and age, and
in retaliation for complaints she made about coworkers watching
pornography at work.3 The charge alleges that Phillips worked at
the hotel as a club lounge attendant; that after the club lounge
was renovated and relocated Starwood told Phillips she would have
1
R. Doc. 8.
2
R. Doc. 8-3.
3
Id.
to reapply for her job; that she reapplied but was not selected;
that Starwood instead offered her a position in room services
with a substantial pay cut; and that Starwood filled the club
lounge position with a black female under 40 years old.4
After concluding its investigation, the EEOC issued Phillips
a Notice of Right to Sue.5 Phillips then brought suit against
Starwood, alleging only age discrimination.6 Unlike her EEOC
charge, Phillips' complaint alleges that Starwood "employs a
pattern and practice of age discrimination by systematically
removing aged employees from positions of high visibility upon
the introduction of a new General Manager to one of its
properties."7
Phillips' first claim for relief, brought under the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-633,
alleges that Starwood discriminated against Phillips via "its
policy of highlighting youthful employees in highly visible
positions."8 Her second claim for relief, brought under the
Louisiana Age Discrimination in Employment Act, La. R.S. 23:312,
alleges that Starwood transferred Phillips "to a less
4
Id.
5
R. Doc. 1 at 4.
6
Id. at 1.
7
Id. at 2.
8
Id. at 4-5.
2
prestigious, physically exhausting position . . . because of her
age."9
Starwood filed this motion for partial dismissal pursuant to
Federal Rule of Civil Procedure 12(b)(6).10 It asks the Court to
dismiss Phillips' claims of pattern or practice discrimination
"because [Phillips] failed to exhaust her administrative remedies
on those claims."11
II.
Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead sufficient facts "to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). If there are insufficient factual allegations to raise a
right to relief above the speculative level, Twombly, 550 U.S. at
555, or if it is apparent from the face of the complaint that
there is an insuperable bar to relief, Jones v. Bock, 549 U.S.
199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 & n.9 (5th
Cir. 2007), the claim must be dismissed.
"In considering a motion to dismiss for failure to state a
claim, a district court must limit itself to the contents of the
pleadings, including attachments thereto." Collins v. Morgan
9
Id. at 5.
10
R. Doc. 8.
11
Id.
3
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
"[D]ocuments that a defendant attaches to a motion to dismiss are
considered part of the pleadings if they are referred to in the
plaintiff's complaint and are central to her claim." Id. at 498499 (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987
F.2d 429, 431 (7th Cir. 1993)) (quotation marks removed).
Starwood attaches Phillips' EEOC charge to its motion to
dismiss.12 The EEOC charge is referred to in Phillips' complaint13
and is central to her claim, since "a plaintiff must first
exhaust his or her administrative remedies for claims brought
under the ADEA . . . before filing suit." Jefferson v. Christus
St. Joseph Hosp., 374 F. App'x 485, 489 (5th Cir. 2010). Thus, in
assessing Starwood's motion for partial dismissal, the Court
considers both the contents of Phillips' complaint and her EEOC
charge.
III. Discussion
"[T]he federal courts cannot entertain Title VII or ADEA
claims unless a claimant first fully exhausts his administrative
remedies." Smith v. U.S. Dept. of Navy, 988 F.2d 1209 (5th Cir.
1993). Before a claimant may file suit on an alleged ADEA
violation, she must file a charge of discrimination with the
EEOC. 29 U.S.C. § 626(d)(1); Foster v. National Bank of Bossier
12
R. Doc. 8-3.
13
R. Doc. 1 at 4.
4
City, 857 F.2d 1058, 1060 (5th Cir. 1988). "A suit that flows
from an EEOC complaint is limited [to] charges of discrimination
'like or related to' allegations contained in the EEOC
complaint." Stith v. Perot Systems Corp., 122 F. App'x 115, 118
(5th Cir. 2005) (quoting Sanchez v. Standard Brands, Inc., 431
F.2d 455, 466 (5th Cir. 1970)). The longstanding rule is that
"the scope of the judicial complaint is limited to the scope of
the EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination." McClain v. Lufkin Indus.,
Inc., 519 F.3d 264, 274 (5th Cir. 2008) (quoting Sanchez, 431
F.2d at 466) (quotations marks and emphasis removed).
Phillips' first claim for relief, brought under the ADEA,
alleges that Starwood "regularly and purposefully" identifies
older employees "in highly visible positions" and then transfers,
demotes or terminates them "in a thinly-veiled restructuring or
reduction-in-force program."14 It alleges that this policy was
"instituted to perfection in Phillips' case."15 The claim
unambiguously alleges a pattern and practice of discrimination,
not an isolated instance of individual discrimination. Thus, it
survives Starwood's motion for partial dismissal only if the
investigation that could reasonably be expected to grow out of
14
R. Doc. 1 at 4.
15
Id.
5
Phillips' EEOC charge would encompass the alleged discriminatory
pattern and practice.
Phillips' EEOC charge alleges that she was personally
discriminated against on the bases of race, sex and age, and in
retaliation for complaints she made about coworkers. Nowhere does
the charge allege or suggest a pattern or practice of
discrimination. In fact, it alleges that Starwood transferred
Phillips to room services partly as retaliation for complaints
she made about fellow employees watching pornography at work.16
This suggests that Starwood targeted Phillips for her individual
conduct, not that her transfer was the result of a general policy
of age discrimination.
The Court concludes that the investigation that could
reasonably be expected to grow out of Phillips' EEOC charge would
not encompass the alleged pattern and practice of age
discrimination. Thus, Phillips' first claim for relief, alleging
a pattern and practice of age discrimination in violation of the
ADEA, is DISMISSED for failure to exhaust administrative
remedies.
IV.
State Law Claims
Having determined that plaintiff's federal claim for relief
must be dismissed, the Court declines to exercise supplemental
jurisdiction over her remaining state law claim. See 28 U.S.C. §
16
R. Doc. 8-3.
6
1367(c)(3) ("The district courts may decline to exercise
supplemental jurisdiction over a claim . . . if . . . the
district court has dismissed all claims over which it has
original jurisdiction."). "When a court dismisses all federal
claims before trial, the general rule is to dismiss any
[supplemental] claims." Bass v. Parkwood Hosp., 180 F.3d 234, 246
(5th Cir. 1999). Further, "the Supreme Court has counseled that
the dismissal of all federal claims weighs heavily in favor of
declining jurisdiction." McClelland v. Gronwaldt, 155 F.3d 507,
520 (5th Cir. 1998), overruled on other grounds by Arana v.
Ochsner Health Plan, 338 F.3d 433 (5th Cir. 2003)).
V.
Conclusion
For the foregoing reasons, Phillips' complaint is DISMISSED
without prejudice.
9th
New Orleans, Louisiana, this
day of October, 2013.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
7
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