Rubio v. Hyatt Corporation et al

Filing 17

ORDER AND REASONS denying 9 Motion to Dismiss. Denying as moot 15 Motion for Leave to File. Signed by Judge Carl Barbier on 11/8/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KIYOKO RUBIO

CIVIL ACTION

VERSUS

No. 17-7833

HYATT CORPORATION, ET AL.

SECTION: “J”(2)

ORDER AND REASONS
NATURE OF MOTION AND RELIEF REQUESTED
Before the Court is Hyatt Corporation, C.R. Contractors, LLC,
and

Maritza

Dismiss.

Romero’s

(Rec.

Doc.

(collectively
9.)

Plaintiff,

“Defendants”)
Kiyoko

Rubio,

Motion

to

filed

an

opposition to the motion. (Rec. Doc. 14.) Having considered the
motion and legal memoranda, the record, and the applicable law,
the Court finds that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
This action arises from Plaintiff’s employment with C.R.
Contractors, LLC, a company that provides room attendants and other
hotel staff to several hotels in the New Orleans area. 1

C.R.

Contractors, LLC assigned Plaintiff to Hyatt Corporation’s Hyatt
House as a room attendant from approximately February 2, 2016, to
June 20, 2016.

On June 14, 2016, personnel from C.R. Contractors

and the Hyatt House called Plaintiff into a meeting where she was
promoted to a supervisory position within the Hyatt House. Those

1

The following allegations are taken from Plaintiff’s complaint. (Rec. Doc.
1.) They are assumed to be true for the purposes of this motion.

in attendance included Maritza Romero, president and owner of C.R.
Contractors, LLC, and Peggy Johnson, general manager of the Hyatt
House.
she

Plaintiff alleges that “[m]oments after being promoted,”

informed

Martiza

Romero

and

pregnant. (Rec. Doc. 1 ¶ 7.)

Peggy

Johnson

that

she

was

On June 20, 2016, six days after

being promoted, Defendants allegedly terminated her because of her
pregnancy.

Maritza Romero allegedly called Plaintiff that same

day and stated that “she did not like the decision that the Hyatt
House took, but she had to follow orders.” (Rec. Doc. 1 ¶ 11.)
On August 14, 2017, Plaintiff filed suit against Defendants
for pregnancy discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended by the Pregnancy Discrimination Act
of 1978. 2 Defendants now move to dismiss Plaintiff’s claims under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Rec. Doc.
9.) Plaintiff filed an opposition to the motion. (Rec. Doc. 14.)
The motion is now before the Court on the briefs and without oral
argument.
PARTIES ARGUMENT
Defendants seek dismissal of Plaintiff’s claims under Rule
12(b)(6) claiming that the evidence demonstrates that no adverse
employment
attached

2

action

several

was

taken

documents

against

for

See 42 U.S.C. § 2000e(k).

2

the

Plaintiff.
Court’s

Defendants

consideration

in

support of its motion.

These documents include an affidavit by

Martiza Romero; email correspondence; and records from Martiza
Romero’s cellphone. Defendants argue that these materials may be
considered by the Court because they are referred to in Plaintiff’s
complaint and are central to her claim. (Rec. Doc. 9-1 at 5.)
Martiza Romero’s affidavit states, in relevant part: (1) she
was

“well

aware”

of

Plaintiff’s

pregnancy

“at

the

time

of

Plaintiff’s promotion”; (2) she informed Plaintiff on June 19,
2016, that Plaintiff would be laterally transferred from the Hyatt
House to Hyatt Regency “due to Plaintiff having issues with other
management

at

the

Hyatt

House”;

(3)

Hyatt

Regency

required

Plaintiff to interview with management before she started working
there as a supervisor; (4) she attempted to contact Plaintiff
multiple times on June 22 and 23, 2016 by call and text to no avail
in order to schedule the interview; (5) Plaintiff did not return
her calls or texts; (6) Plaintiff was not terminated and was not
discriminated against; and (7) Plaintiff was promoted because she
was “doing such a good job” and also to accommodate Plaintiff’s
pregnancy “so that she would not have to clean rooms and exhaust
herself.” See Rec. Doc. 9-2. The email correspondence includes
four

emails

between

Mimi

Romero

(Martiza

Romero’s

daughter),

Anitra Williams, and Maria Ruiz, dated June 22, 2016, discussing
the need to set up an interview with Plaintiff for her supervisory
role at the Hyatt Regency. See Rec. Doc. 9-3. Defendants do not
3

identify Anitra Williams or Maria Ruiz. Defendants argue that this
shows Plaintiff could not have been terminated as alleged on June
20, 2016. The cellphone records show multiple outgoing calls and
text

messages

from

Martiza

Romero’s

cellphone

to

Plaintiff’s

purported cellphone on June 22 and 23, 2016. See Rec. Doc. 9-2.
Defendants argue that this demonstrates that Plaintiff was not
terminated on June 20, 2016, and that she stopped communicating
and showing up for work.
Plaintiff argues that the emails, cellphone records, and
affidavit are improperly attached to the Rule 12 motion to dismiss
and should not be considered by the Court. Plaintiff concedes that
the thoughts and motives of Defendants are central to Plaintiff’s
claim, however, Plaintiff argues that the materials are selfserving depictions that should not be admitted at this stage of
the litigation. Alternatively, if the motion is converted into a
motion for summary judgment, Plaintiff requests that the Court
grant her more time for additional discovery pursuant to Federal
Rule of Civil Procedure 56(d).
DISCUSSION
(1)

Motion to Dismiss or Motion for Summary Judgment?

While courts typically cannot consider evidence outside of
the pleadings in the context of a motion to dismiss, a court may
consider “documents incorporated into the complaint by reference.”
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
4

(2007). The United States Court of Appeals for the Fifth Circuit
has established that a court’s consideration of documents attached
to a motion to dismiss is limited “to documents that are referred
to in the plaintiff's complaint and are central to the plaintiff's
claim.” Scanlan v. Tex. A & M Univ., 343 F.3d 533, 536 (5th Cir.
2003) (emphasis added) (citation omitted).
A district court may, in its discretion, treat a motion to
dismiss as a motion for summary judgment and consider evidence
outside of the pleadings.

See Fed. R. Civ. P. 12(d); Soley v.

Star & Herald Co., 390 F.2d 364, 366 (5th Cir. 1968).

“If, on a

motion under 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.” Fed. R. Civ.
P. 12(d).

“When a party bases a motion to dismiss on matters

outside the pleadings, the court has discretion either to accept
the extraneous material and convert the motion to dismiss into a
motion for summary judgment, or to decide the motion, as defendant
styled it, under the principles of Rule 12(b)(6).”

McDonald v.

Kansas City S. Ry. Co., 16-15975, 2017 WL 1709353, at *2 (E.D. La.
May 3, 2017) (citations omitted).

This discretion is exercised

based on a determination of whether the material outside the
12(b)(6) motion will facilitate disposition of the action.

Ware

v. Associated Milk Producers, 614 F.2d 413, 415 (5th Cir. 1980).

5

However, if the material is incomplete or inconclusive, conversion
is generally rejected.

Id.

Here, Defendants base their motion to dismiss on an affidavit,
cellphone records, and e-mail correspondence that were attached to
Defendants’ motion.

While the documents may contain information

central to Plaintiff’s claim, Plaintiff does not reference these
materials in her complaint. Therefore, these documents are matters
outside the pleadings and shall not be considered by the Court. 3
See Johnson v. PPI Tech. Servs., L.P., 11-2773, 2012 WL 3065499,
at *2 (E.D. La. July 27, 2012) (concluding that the chain of emails
attached as support to movant’s motion to dismiss was material
outside the pleadings and not properly considered on a motion to
dismiss); but see In re Katrina Canal Breaches Litig., 495 F.3d
191, 205 (5th Cir. 2007) (considering insurance contracts attached
to the motions to dismiss when they were referred to in the
complaint and central to the plaintiffs’ claims).

3 For further explanation of what constitutes “matters outside the pleadings,”
see 5C Wright & Miller, Fed. Prac. & Proc. Civ. § 1366 (3d ed.):

Most federal courts . . . have viewed the words “matters outside
the pleading” as including any written or oral evidence introduced
in support of or in opposition to the motion challenging the
pleading that provides some substantiation for and does not merely
reiterate what is said in the pleadings. Memoranda of points and
authorities as well as briefs and oral arguments in connection with
the motion, however, are not considered matters outside the
pleadings for purposes of conversion. The same is true for various
types of exhibits that are attached to the pleading, matters of
which the district court can take judicial notice, and items of
unquestioned authenticity that are referred to in the challenged
pleading and are “central” or “integral” to the pleader's claim for
relief.

6

The Court, in its discretion, declines to convert Defendants’
motion to a motion for summary judgment. 4 Gen. Retail Servs., Inc.
v. Wireless Toyz Franchise, LLC, 255 F. App’x. 775, 783 (5th Cir.
2007) (“[W]hen ‘matters outside of the pleading’ are presented
with a motion to dismiss under Rule 12(b)(6), a district court has
complete discretion to either accept or exclude the [additional]
evidence.”); see also 5C Wright & Miller, Fed. Prac. & Proc. Civ.
§ 1366 (3d ed.) (recognizing that a district court is likely to
accept material outside the pleadings and convert a motion to
dismiss into a motion for summary judgment when the material is
comprehensive and will enable a rational determination of a Rule
56 motion).

This litigation is in its beginning stages and the

parties have had very little, if any, time to conduct discovery.
Therefore, finding that a motion for summary judgment is premature
at this time, the Court excludes the extraneous documents and
considers Defendants’ motion as a motion to dismiss strictly on
the pleadings. 5
(2)

Rule 12(b)(6) Motion to Dismiss

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is

4

Notably, Defendants have not requested, in the alternative, that this Court
convert their motion to a motion for summary judgment, at which time the Court
would be able to consider matters outside the pleadings. However, even if
Defendants had made such a request, the Court would have still declined to
convert this motion to a motion for summary judgment.
5 The Court’s ruling does not preclude Defendants’ ability to move for summary
judgment at a later stage with a more fully developed record. See Ware, 614
F.2d at 414-15.

7

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 is facially plausible when the plaintiff pleads

facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.”

Id.

A court

must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff.

Lormand v. U.S.

Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
(a)

Title VII Discrimination

Defendants rely on their attached documents to show there is
no genuine issue of material fact, but do not mention whether
Plaintiff plead enough facts to state a claim that is plausible on
its

face.

Defendants

confuse

arguments

in

support

of

a

Rule

12(b)(6) dismissal with those properly asserted in a summary
judgment

context.

Nevertheless,

the

Court

will

consider

the

sufficiency of Plaintiff’s complaint.
Plaintiff
factual

argues

grounds

to

that
state

the
a

complaint
plausible

contains
claim

sufficient

for

pregnancy

discrimination under Title VII of the 1964 Civil Rights Act. Title
VII provides that it is unlawful for an employer “to fail or refuse
to

hire

or

to

discharge

discriminate

against

compensation,

terms,

because

of

such

any

any

individual,

individual

conditions,

individual’s

or

race,
8

with

or

respect

privileges
color,

otherwise

of

to

to
his

employment

religion,

sex,

or

national origin.”

42 U.S.C. § 2000e-2(a)(1).

In 1978, Congress

enacted the Pregnancy Discrimination Act (“PDA”), which amended
Title

VII

to

include

discrimination

based

on

pregnancy

and

pregnancy-related medical conditions within the definition of sexbased discrimination. 6

Stout v. Baxter Healthcare Corp., 282 F.3d

856, 859 (5th Cir. 2002).
The Supreme Court has stated that the plaintiff’s burden of
making out a prima facie discrimination claim “is an evidentiary
standard, not a pleading requirement.” Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 510-11 (2002).

However, a court may consider

the McDonnell Douglas framework in assessing the sufficiency of a
complaint, as no plaintiff is exempt from the obligation to “allege
facts sufficient to state all the elements of her claim.” See
Puente v. Ridge, 324 F. App’x 423, 427-48 (5th Cir. 2009) (citation
omitted). Under this framework, Plaintiff must first establish a
prima facie case of discrimination.

Id. at 427 (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

To do so,

Plaintiff must show: (1) she is a member of a protected class; (2)
she was qualified for the position at issue; (3) she was discharged

6

42 U.S.C. § 2000e(k) provides, in pertinent part:
The terms “because of sex” or “on the basis of sex” include, but
are not limited to, because of or on the basis of pregnancy,
childbirth, or related medical conditions; and women affected by
pregnancy, childbirth, or related medical conditions shall be
treated the same for all employment-related purposes, including
receipt of benefits under fringe benefit programs, as other persons
not so affected but similar in their ability or inability to work.

9

or suffered some adverse employment action by the employer; and
(4) similarly situated nonpregnant employees were more favorably
treated.
2007).

McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir.
After Plaintiff establishes her prima facie case, the

burden shifts to Defendants to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. Rachid
v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004). “If
the employer articulates such a reason, the plaintiff then has an
opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant [i.e., the employer]
were not its true reasons, but were a pretext for discrimination.”
Fairchild v. All Am. Check Cashing, Inc., 815 F.3d 959, 967 (5th
Cir. 2016) (citations omitted).
Assuming all factual allegations as true and drawing all
reasonable inferences in favor of Plaintiff, the Court finds that
Plaintiff has pled enough facts to establish a plausible claim
upon which she is entitled to relief. First, although Plaintiff
does not specifically state that she was qualified for the position
at issue, that fact can be inferred from her allegations that she
was employed as a room attendant from approximately February 2,
2016 to June 20, 2016 and promoted to a supervisory position on
June 14, 2016.

Second, “moments after being promoted,” Plaintiff

alleges that she informed Defendants that she was pregnant, i.e.
a member of a protected class. (Rec. Doc. 1 at ¶ 7.)
10

Third,

Plaintiff

alleges

that

Defendants

terminated

her,

which

is

indisputably considered an adverse employment action.
Finally, Plaintiff does not allege any facts showing that
other similarly situated nonpregnant employees were more favorably
treated, however, Plaintiff is not required to establish each prong
of a prima facie case to survive a motion to dismiss. See Raj v.
Louisiana State Univ., 714 F.3d 322, 331 (5th Cir. 2013) (noting
that

a

plaintiff

need

not

make

out

a

prima

facie

case

of

discrimination in order to survive a Rule 12(b)(6) motion to
dismiss

for

failure

to

state

a

claim).

Therefore,

the

final

question to be resolved is whether Plaintiff stated enough facts
to show that Defendants terminated her because of her pregnancy.
See

id.

(“[T]he

ultimate

question

in

a

Title

VII

disparate

treatment claim remains whether a defendant took the adverse
employment action against a plaintiff because of her protected
status.”).

Plaintiff alleges that her termination came six days

after she informed Defendants that she was pregnant.

Plaintiff

insists that the termination was “because she was pregnant” and
for “no good faith reason.” (Rec. Doc. 1 at ¶¶ 9, 10.)
The Fifth Circuit has established that, in the context of
retaliation and other employment discrimination claims, temporal
proximity, when very close, can in some instances be evidence of
pretext. Fairchild, 815 F.3d at 968; see also Strong v. Univ.
Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) (citing
11

Clark County School District v. Breeden, 532 U.S. 268, 273 (2001)).
However, to survive summary judgment, “[t]iming standing alone is
not

sufficient

absent

other

evidence

of

pretext.”

Burton

v.

Freescale Semiconductor, Inc., 798 F.3d 222, 240 (5th Cir. 2015)
(citations omitted).

In Burton, the court concluded that, in

addition to other significant evidence of pretext, the employer’s
decision to terminate the plaintiff was sufficiently close in time
to the employer’s discovery of the plaintiff’s medical condition
to raise an inference of pretext and survive a motion for summary
judgment.

Id. at 240-41.

More recently, the Fifth Circuit declined to adopt a different
analysis for pregnancy-based sex discrimination claims. Fairchild,
815 F.3d at 968.

In Fairchild, the Fifth Circuit considered, as

a matter of first impression, whether the temporal proximity
between an employer learning of the plaintiff’s pregnancy and the
adverse employment action was sufficient to prove pretext in a
pregnancy discrimination matter. Id. at 967-68.

In assessing the

plaintiff’s claim under McDonnell Douglas, the court held that
“[b]ecause the only circumstantial evidence in this case was
temporal proximity, [the defendant] was entitled to a judgment as
a matter of law after it established legitimate, nondiscriminatory
reasons for [the plaintiff]’s termination.” Id. at 968.

The court

determined that “[a]lthough the temporal proximity between the
employer learning of the plaintiff’s pregnancy and her termination
12

may support a claim of pretext, such evidence – without more – is
insufficient.” Id. 7
Here, the burden on Plaintiff is much lower in the context of
a Rule 12(b)(6) motion to dismiss.

Plaintiff has alleged that a

mere six day period separated the moment Defendants learned of her
pregnancy and the moment she was terminated.

Such an allegation

reasonably allows the Court to at least infer that the termination
was causally connected to Plaintiff’s pregnancy. See Raj, 714 F.3d
at 331 (stating that alleged facts must be sufficient to at least
create an inference that the plaintiff was discriminated against
because of the alleged protected characteristic). Due to the close
temporal proximity of the date Defendants allegedly learned of
Plaintiff’s pregnancy and Plaintiff’s termination, the Court finds
that Plaintiff has established a causal nexus sufficient to state
a claim for pregnancy discrimination.

7 Other courts have likewise determined that temporal proximity can establish a
causal connection between plaintiff disclosing her pregnancy and an adverse
employment action.
See e.g., Asmo v. Keane, Inc., 471 F.3d 588, 593-94 (6th
Cir. 2006) (concluding that two months is sufficient to establish a link between
the defendant’s knowledge of plaintiff’s pregnancy and her subsequent
termination for the purposes of a prima facie case); Govori v. Goat Fifty,
L.L.C., 519 F. App’x 732, 734 (2d Cir. 2013) (“While temporal proximity between
events may give rise to a prima facie case of discrimination, “such temporal
proximity is insufficient to satisfy plaintiff's burden to bring forward some
evidence of pretext.”) (citation omitted).

13

CONCLUSION
Accordingly,
IT IS ORDERED that Defendants’ Motion to Dismiss (Rec. Doc.
9) is hereby DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Leave to
File Reply (Rec. Doc. 15) is DENIED AS MOOT.
New Orleans, Louisiana this 8th day of November, 2017.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

14