Joseph v. Taco Bell of America, LLC
ORDER AND REASONS granting 9 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, defendant's motion to dismiss is GRANTED. Plaintiff's retaliation claim is DISMISSED WITHOUT PREJUDICE, with leave to amend within 21 days. The Court grants plaintiff leave to amend her complaint. Because plaintiff has already amended her complaint twice, any further amendment must be limited to her retaliation claim. Signed by Judge Sarah S. Vance on 3/6/2018. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TACO BELL OF AMERICA, LLC
SECTION “R” (5)
ORDER AND REASONS
Before the Court is defendant Taco Bell of America, LLC’s motion to
dismiss.1 For the following reasons, the Court grants the motion.
Plaintiff Lateisha Joseph was a general manager at a Taco Bell in
Kenner, Louisiana, from March 2012 to August 2015. 2 In July 2015, she
allegedly informed her supervisor, Paula Shoemaker, of her pregnancy, and
requested certain accommodations.3 Plaintiff asserts that on August 7,
Shoemaker told her that she would need to take early leave, and that on
August 18, Shoemaker gave plaintiff a thirty-day action plan.4 On the next
R. Doc. 9.
R. Doc. 31 at 1 ¶¶ 5-6, 4 ¶ 48.
Id. at 2 ¶ 18.
Id. at 2 ¶ 24, 3 ¶¶ 29-32. Plaintiff’s complaint does not describe the
content of this action plan.
day, August 19, plaintiff’s doctor allegedly placed her on permanent home
rest. 5 Plaintiff has not returned to work since then. According to plaintiff,
she inquired about her return date, but never heard back from defendant. 6
Plaintiff alleges that she called a Taco Bell hotline to complain about
Shoemaker’s conduct on August 19, 2015.7 Later, on November 12, 2015, she
allegedly filed a charge of discrimination with the EEOC. 8 After receiving
her right to sue letter, plaintiff filed this Title VII suit on October 29, 2017. 9
Defendant then moved to dismiss plaintiff’s racial discrimination and
retaliation claims.10 Plaintiff amended her complaint on January 5, 2018,
and again on February 28, 2018. 11
To survive a Rule 12(b)(6) motion to dismiss, plaintiffs must plead
enough 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, 547 (2007)). A claim is facially plausible “when the plaintiff
Id. at 4 ¶ 46.
Id. ¶ 48.
Id. ¶ 44.
Id. ¶ 47.
R. Doc. 1.
R. Doc. 9.
R. Docs. 16, 31.
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 678. 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, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Id. It need not contain detailed
factual allegations, but it must go beyond labels, legal conclusions, or
formulaic recitations of the elements of a cause of action. Twombly, 550 U.S.
at 555. In other words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. 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.
Defendant first moves to dismiss plaintiff’s racial discrimination claim.
Plaintiff clarifies in her opposition that she does not assert a claim of
discrimination based on race,12 and her amended complaint omits any
mention of racial discrimination. Thus, even if plaintiff earlier asserted this
claim, she has since abandoned it.
Defendant next moves to dismiss plaintiff’s retaliation claim. In order
to state a retaliation claim, a plaintiff must allege “(1) that [she] engaged in
activity protected by Title VII, (2) that an adverse employment action
occurred, and (3) that a causal link existed between the protected activity and
the adverse action.” Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471
(5th Cir. 2002).
Plaintiff fails to allege sufficient facts to plausibly infer an adverse
employment action. The only adverse employment action that potentially
could have resulted from plaintiff’s protected activity relates to defendant’s
alleged failure to respond to her inquiries about returning to work. 13 If
R. Doc. 14-1 at 2.
While forcing an employee to take early maternity leave could
constitute an adverse employment action, see Stewart v. Miss. Transp.
defendant actually terminated plaintiff while she was on leave, that would
constitute an adverse employment action. See EEOC v. Houston Funding II,
Ltd., 717 F.3d 425, 430 (5th Cir. 2013) (employer’s termination of woman
who was on maternity leave but desired to return to work constituted adverse
employment action). But plaintiff does not allege that she was actually
discharged, either formally or constructively. Nor does she allege to whom
she inquired about returning to work, when she made the inquiries, and what
she said. An employer’s failure to respond to an inquiry, without more, is
not a retaliatory act. Moreover, if plaintiff believed she was entitled and able
to return to work, it is unclear why she did not do so and instead sought
permission from defendant.
The Court grants plaintiff leave to amend her complaint. Because
plaintiff has already amended her complaint twice, any further amendment
must be limited to her retaliation claim.
Comm’n, 586 F.3d 321, 332 (5th Cir. 2009), this action did not precede—and
therefore could not have been caused by—plaintiff’s alleged protected
For the foregoing reasons, defendant’s motion to dismiss is
Plaintiff’s retaliation claim is DISMISSED WITHOUT
PREJUDICE, with leave to amend within 21 days.
New Orleans, Louisiana, this _____ day of March, 2018.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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