Joseph v. Taco Bell of America, LLC

Filing 43

ORDER AND REASONS denying 36 Motion to Dismiss for Failure to State a Claim. Signed by Judge Sarah S. Vance on 6/7/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LATEISHA JOSEPH

CIVIL ACTION

VERSUS

NO. 17-11460

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 denies the motion.

I.

BACKGROUND
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 On August 15, Shoemaker allegedly
told plaintiff that plaintiff would need to take early leave. 4 On August 18,
according to plaintiff, Shoemaker gave her a “thirty-day action plan,” which
set certain benchmarks for plaintiff’s performance and threatened plaintiff

1
2
3
4

R. Doc. 36.
R. Doc. 35 at 1 ¶¶ 5-6, 4 ¶ 51.
Id. at 2 ¶ 21.
Id. at 3 ¶ 28.

with termination if she failed to meet those benchmarks. 5 On August 19,
plaintiff allegedly called a Taco Bell employee hotline to complain about
Shoemaker’s conduct. 6 That same day, plaintiff asserts that she presented to
defendant a doctor’s note for permanent home rest. 7 Plaintiff’s leave was
unpaid, and she has not since returned to work.8
Plaintiff filed a charge of discrimination on November 12, 2015. 9 EEOC
investigator Douglas Seamans handled plaintiff’s charge.10 Plaintiff alleges
that defendant falsely accused her of performance issues in its February 2016
response to the EEOC charge. 11

According to plaintiff, Seamans sent

defendant’s counsel an email on May 4, 2016, indicating plaintiff’s desire to
return to work.12 Plaintiff asserts that defendant never responded to this
email.13 In September 2016, plaintiff allegedly received notice from the
Louisiana Workforce Commission indicating that defendant had refused to
reinstate her because of lack of work. 14

5
6
7
8
9
10
11
12
13
14

Id. ¶¶ 33-37.
Id. at 4 ¶ 48.
Id. ¶ 51.
See id. ¶ 53.
Id. ¶ 54.
Id. ¶ 55.
Id. at 5 ¶¶ 57-64, 8 ¶ 98.
Id. at 5 ¶ 65.
Id. ¶ 66.
Id. ¶¶ 68-69.
2

After receiving her right to sue letter, plaintiff filed this Title VII suit
on October 29, 2017.15

Plaintiff initially asserted claims for sex

discrimination, racial discrimination, and retaliation.

Plaintiff filed an

amended complaint as of right on January 5, 2018, 16 and filed a second
amended complaint on February 28. 17 On March 6, the Court granted
defendant’s motion to dismiss plaintiff’s racial discrimination and retaliation
claims, and gave plaintiff leave to amend her retaliation claim. 18 Plaintiff
filed her third amended complaint on March 25.19 Defendant now moves to
dismiss plaintiff’s retaliation claim under Federal Rule of Civil Procedure
12(b)(6).20

II.

LEGAL STANDARD
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

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16
17
18
19
20

R. Doc. 1.
R. Doc. 16.
R. Doc. 31.
R. Doc. 32.
R. Doc. 35.
R. Doc. 36.
3

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.

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III. DISCUSSION
Title VII makes it unlawful for an employer to discriminate against an
employee who has opposed an employment practice made unlawful by Title
VII. 42 U.S.C. § 2000e-3(a). 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 has alleged all three elements of a retaliation claim. First,
plaintiff alleges that she engaged in protected activity by lodging an internal
complaint through the employee hotline on August 19, 2015, and by filing a
charge of discrimination on November 12, 2015.21

“An employee has

engaged in protected activity when she has (1) ‘opposed any practice made
an unlawful employment practice’ by Title VII or (2) ‘made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing’ under Title VII.”

Douglas v. DynMcDermott

Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998) (quoting 42
U.S.C. § 2000e-3(a)).

21

R. Doc. 35 at 4 ¶¶ 48, 54.
5

Plaintiff’s filing of a charge of discrimination was per se protected
activity. See Evans v. City of Houston, 246 F.3d 344, 352-53 (5th Cir. 2001).
Internally complaining about an employment practice may constitute
protected activity, so long as the complainant “reasonably believed the
employment practice to be unlawful.” EEOC v. Rite Way Serv., Inc., 819
F.3d 235, 240 (5th Cir. 2016).

Plaintiff allegedly complained via the

employee hotline that her manager harassed her by forcing her to take early
leave for her pregnancy. It is plausible to infer that plaintiff reasonably
believed such conduct violates Title VII. See, e.g., Fairchild v. All Am. Check
Cashing, Inc., 815 F.3d 959, 966 (5th Cir. 2016) (“[F]or a pregnancy-based
sex discrimination claim, an employer is liable for disparate treatment,
which occurs when the employee’s ‘protected trait actually motivated’ the
employer to take the adverse employment action.” (quoting Young v. United
Parcel Serv., Inc., 135 S. Ct. 1338, 1345 (2015))); Langley v. State Farm Fire
& Cas. Co., 644 F.2d 1124, 1128 (5th Cir. 1981) (suggesting that a mandatory
early maternity leave policy may violate Title VII).
Plaintiff suggests in her opposition to defendant’s motion to dismiss
that her July 2015 request for accommodation also qualifies as protected
activity. 22

22

A request for accommodation of a disability may constitute

R. Doc. 37-1 at 2.
6

protected activity under the Americans with Disabilities Act (ADA). See
Tabatchnik v. Cont’l Airlines, 262 F. App’x 674, 676 (5th Cir. 2008). But a
request for accommodation relates to an employment practice made
unlawful by the ADA, not Title VII. See 42 U.S.C. § 2000e-3(a); see also id.
§ 2000e-2(a) (Title VII makes it unlawful to discriminate based on race,
color, religion, sex, and national origin). Thus, unlike plaintiff’s internal
complaint and EEOC charge, her request for accommodation does not
constitute protected activity.
Second, plaintiff alleges that she suffered an adverse employment
action when defendant failed to reinstate her. An adverse employment
action, for purposes of a retaliation claim, is “an action that ‘a reasonable
employee would have found . . . [to be] materially adverse, which in this
context means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.’” Aryain v. Wal-Mart
Stores Texas LP, 534 F.3d 473, 484 (5th Cir. 2008) (quoting Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). This includes a failure
to hire—or rehire—an individual. See Porter v. Houma Terrebonne Hous.
Auth. Bd. of Comm’rs, 810 F.3d 940, 947 (5th Cir. 2015).

7

Plaintiff asserts that she requested reinstatement through her EEOC
investigator, Douglas Seamans.23 Seamans sent an email to defendant’s
counsel on May 4, 2016, seeking both reinstatement and back pay for
plaintiff. 24

According to plaintiff, defendant never responded to this

request.25

Moreover, the notice plaintiff allegedly received from the

Louisiana Workforce Commission on September 21, 2016, suggests that
defendant considered, and rejected, plaintiff’s reinstatement request. 26
Defendant’s alleged failure to rehire plaintiff constitutes an adverse
employment action. See Porter, 810 F.3d at 947; see also EEOC v. Houston
Funding II, Ltd., 717 F.3d 425, 427, 430 (5th Cir. 2013) (employer’s
termination of woman who was on maternity leave but desired to return to
work constituted adverse employment action).
Finally, plaintiff alleges a causal link between her protected activity
and defendant’s failure to rehire her. “A plaintiff alleging retaliation may
satisfy the causal connection element by showing ‘close timing between an
employee’s protected activity and an adverse action against him.’” Feist v.
La. Dep’t of Justice, 730 F.3d 450, 454 (5th Cir. 2013) (quoting McCoy v.

23
24
25
26

R. Doc. 35 at 5 ¶ 65.
Id.
Id. ¶ 66.
Id. ¶¶ 68-69.
8

City of Shreveport, 492 F.3d 551, 562 (5th Cir. 2007)). Other “indicia of
causation” include “the employee’s past disciplinary record” and “whether
the employer followed its typical policy and procedures.”

Nowlin v.

Resolution Tr. Corp., 33 F.3d 498, 508 (5th Cir. 1994); see also Feist, 730
F.3d at 454-55.
Here, plaintiff requested reinstatement nearly six months after she
filed the EEOC charge, and nearly nine months after she lodged an internal
complaint via the employee hotline. This temporal proximity, standing
alone, does not permit a plausible inference of causation. See, e.g., Raggs,
278 F.3d at 471-72 (holding that five-month delay between protected activity
and termination was insufficient to establish causation for prima facie case
of retaliation); see also Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) (“The cases that accept mere temporal proximity between an
employer’s knowledge of protected activity and an adverse employment
action as sufficient evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be ‘very close.’” (citation
omitted)).
Although temporal proximity does not suffice to raise a plausible
inference of causation in this case, plaintiff points to other facts that also
suggest causation.

See Nowlin, 33 F.3d at 508 (noting that causation
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analysis in retaliation claim is “highly fact specific”). First, plaintiff alleges
that the notice she received from the Louisiana Workforce Commission
indicated that defendant refused to reinstate her because of lack of work. 27
According to plaintiff, defendant’s failure to rehire her after she took leave
was contrary to its usual policy. Plaintiff asserts that defendant usually
assigns managers returning from leave to a high-volume location until a
permanent position becomes available.28 Defendant’s alleged failure to
follow its standard practice supports an inference of causation. See id.
Second, plaintiff emphasizes her positive work performance, as evidenced by
her annual bonuses.29 This too supports causation because it undermines
defendant’s allegations of plaintiff’s poor work performance in defendant’s
February 2016 response to the EEOC charge. See id. Together, these facts
permit a plausible inference of causation.

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29

Id.
See id. at 2 ¶¶ 12-13.
Id. at 6 ¶ 75.
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IV.

CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss is DENIED.

7th
New Orleans, Louisiana, this _____ day of June, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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