Aguiniga v. Delgado et al
Filing
37
ORDER granting 13 Motion to Dismiss; granting 15 Motion to Dismiss; granting 17 Motion to Dismiss; granting 29 Motion to Dismiss for the reasons set out in the order. The Title VII claims against the moving Defendants are dismissed without p rejudice. The NIED claims are dismissed with prejudice. The parties are instructed to contact the magistrate judge to set a telephonic conference during which they should discuss a new scheduling order that includes a deadline for motions to amend. Signed by District Judge Daniel P. Jordan III on June 28, 2016.(SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JAZMINE AGUINIGA
PLAINTIFF
V.
CIVIL ACTION NO. 3:15cv562-DPJ-FKB
SALBADOR DELGADO, et al.
DEFENDANTS
ORDER
This employment-discrimination case against multiple defendants is before the Court on
four motions to dismiss [13, 15, 17, and 29]. Plaintiff opposes the motions, but for the reasons
that follow, the Court concludes that dismissal without prejudice is appropriate.
I.
Background
Plaintiff Jazmine Aguiniga is a former poultry-plant employee who claims that she was
sexually harassed by a supervisor and that Defendants allowed the conduct to continue unabated
until she eventually lost her employment. Aguiniga appears to have filed a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”) naming M.T.
Poultry, Inc. as her employer, though the only charge in the record is unsigned and undated. See
Compl. ¶ 11; Charge [29-1]. Regardless, the EEOC sent Aguiniga and M.T. Poultry a Notice of
Suit Rights dated May 13, 2015. Notice [29-2].
After receiving this notice, Aguiniga sued M.T. Poultry, referring to it as M.T. Poultry,
Inc., a/k/a P.H. Food, Inc. She also sued Salbador Delgado; Leyen Food, LLC; PMI Services,
LLC; and Southern Knights Industrial Services, LLC (“Southern Knights”). In her Complaint,
she asserted claims for negligent infliction of emotional distress (“NIED”) and for discrimination
and retaliation under Title VII of the Civil Rights Act of 1964. All corporate Defendants have
now moved to dismiss.
II.
Standard
Turning to the applicable standard, under Rule 12(b)(6), the “court accepts ‘all
well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’” Martin K.
Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). To overcome a Rule 12(b)(6) motion, Plaintiff
must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). That “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Factual allegations must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly,
550 U.S. at 555 (citations and footnote omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. It follows that “where
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged–but it has not ‘show[n]’–‘that the pleader is entitled to
relief.’” Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
Iqbal provides a framework for examining the sufficiency of a complaint. First, the
district court may “begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. Second, “[w]hen there are
well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id. But “the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.
2
Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
Ordinarily, a court decides a motion to dismiss for failure to state a claim by looking only
at the face of the complaint, unless it converts the motion to a motion for summary judgment.
See Fed. R. Civ. P. 12(d). That said, some documents outside the pleadings may be considered
under Rule 12(b)(6). For example, documents attached to a motion to dismiss that are “referred
to in the plaintiff’s complaint and . . . central to her claim,” are considered part of the pleadings.
Causey v. Sewell Cadillac–Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). A district court is
also permitted to rely on matters of public record when ruling on a Rule 12(b)(6) motion without
converting it to a motion for summary judgment. Fin. Acquisition Partners LP v. Blackwell, 440
F.3d 278, 286 (5th Cir. 2006). With these standards in mind, the Court turns to Defendants’
arguments.
III.
Analysis
A.
Title VII
Defendants P.H. Food, Leyen Food, M.T. Poultry, and Southern Knights moved for
dismissal of the Title VII claims, asserting that they never employed Aguiniga. Though PMI
Services filed no such motion, it has sought dismissal of the Title VII claims on exhaustion
grounds because Aguiniga’s EEOC charge named only M.T. Poultry as her employer. The other
corporate Defendants soon joined in that argument, as they too—other than M.T. Poultry—were
excluded from the EEOC charge. The Court will look first at the exhaustion issue and then the
employer-status argument.
3
1.
Failure to Exhaust
The Fifth Circuit recently reiterated the “general rule that ‘a party not named in an EEOC
charge may not be sued under Title VII.’” EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir.
2014) (quoting Way v. Mueller Brass Co., 840 F.2d 303, 307 (5th Cir. 1988)). But exceptions do
exist. In particular, entities that are not named in an EEOC charge may still face suit if they
share an “identity of interests” with an employer that was named in the EEOC charge. Id. (citing
Way, 840 F.2d at 307); see also Hartz v. Adm’rs of Tulane Educ. Fund, 275 F. App’x 281,
286–87 (5th Cir. 2008) (reversing Rule 12(b)(6) denial and remanding for further proceedings
where the plaintiff named only one of two defendants in EEOC charge). Another exception
exists when the defendant receives “actual notice of the charge and an opportunity to participate
in conciliation.” Simbaki, Ltd., 767 F.3d at 484.
The Fifth Circuit’s identity-of-interests test includes the following four factors:
(1) whether the role of the unnamed party could through reasonable effort by the
complainant be ascertained at the time of the filing of the EEOC complaint; (2)
whether, under the circumstances, the interests of a named are so similar as the
unnamed party’s that for the purpose of obtaining voluntary conciliation and
compliance it would be unnecessary to include the unnamed party in the EEOC
proceedings; (3) whether its absence from the EEOC proceedings resulted in
actual prejudice to the interests of the unnamed party; (4) whether the unnamed
party has in some way represented to the complainant that its relationship with the
complainant is to be through the named party.
Simbaki, Ltd., 767 F.3d at 482–83 (parens added) (citing Glus v. G.C. Murphy Co., 562 F.2d 880,
888 (3d Cir. 1977)).1
1
Aguiniga never directly addresses this legal test in her Response [34] and instead
discusses the standards for integrated-enterprise status, which will be addressed next.
4
An independent review of Aguiniga’s Complaint fails to produce facts sufficient to
conduct the identity-of-interests analysis as to PMI Services, P.H. Food, Leyen Food, or
Southern Knights. The Title VII claims against them are therefore dismissed for failure to
exhaust administrative remedies.2
Defendant M.T. Poultry, on the other hand, was specifically named in the EEOC charge,
so to the extent it joins in PMI Services’ motion, the claims against M.T. Poultry were
adequately exhausted.
2.
Employer Status
M.T. Poultry raises a second argument—that “Plaintiff has pled no facts supporting her
claim that she was employed by this Defendant except a bare unsupported allegation that is
simply untrue.” Def.’s Mem. [18] at 3 (emphasis in original). Though M.T. Poultry denies
employing Aguiniga, the Court may not consider this assertion under Rule 12(b)(6). The Court
will, however, consider whether Aguiniga’s Complaint sufficiently alleges employer status.
“[G]enerally only employers may be liable under Title VII.” Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). To determine whether M.T. Poultry
2
The Court notes that P.H. Food, Inc. also contends that it is not properly named in the
Complaint so the process it received should be quashed. Plaintiff generally concedes that she
does not know the corporate relationships but does not otherwise address the motion to quash.
The motion to quash is well-taken, as is P.H. Food’s alternative merits-based arguments, and
dismissal without prejudice is appropriate. If Plaintiff wishes to pursue a claim against P.H.
Food, Inc., she will need to properly serve it with process in accordance with Rule 4 of the
Federal Rules of Civil Procedure. See Thomas v. New Leaders for New Sch., 278 F.R.D. 347,
352 (E.D. La. 2011) (allowing the plaintiff to re-serve the party and noting that “[w]here there is
‘a reasonable prospect that plaintiff ultimately will be able to serve defendant properly,’ the
proper course of action is to quash service and permit a plaintiff another opportunity to complete
service rather than dismiss the case.” (quoting Charles Alan Wright & Arthur R. Miller, 5B
Federal Practice and Procedure § 1354 (3d ed. 2004)).
5
employed Aguiniga, the Court starts with the “hybrid economic realities/common law control
test.” Deal v. State Farm Cty. Mut. Ins. Co. of Tex., 5 F.3d 117, 118–19 (5th Cir. 1993) (quoting
Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019 (5th Cir. 1990)). “The right to control
an employee’s conduct is the most important component of this test,” and courts consider
“whether the alleged employer has the right to hire and fire the employee, the right to supervise
the employee, and the right to set the employee’s work schedule.” Id. at 119. “The economic
realities component of [the] test has focused on whether the alleged employer paid the
employee’s salary, withheld taxes, provided benefits, and set the terms and conditions of
employment.” Id. (quoted in Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 227 (5th
Cir. 2015)).
But these tests are not the end of the inquiry. The Fifth Circuit has “long held that
‘superficially distinct entities may be exposed to liability upon a finding that they represent a
single, integrated enterprise’ (i.e., a single employer).” Schirle v. Sokudo USA, LLC, 484 F.
App’x 893, 898 (5th Cir. 2012) (quoting Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.
1983)). The Fifth Circuit explained the integrated-enterprise test in Trevino:
Factors considered in determining whether distinct entities constitute an
integrated enterprise are (1) interrelation of operations, (2) centralized control of
labor relations, (3) common management, and (4) common ownership or financial
control. Courts applying this four-part standard in Title VII and related cases
have focused on the second factor: centralized control of labor relations. Oaks v.
City of Fairhope, 515 F. Supp. 1004 (S.D. Ala. 1981); Fike v. Gold Kist, Inc., 514
F. Supp. 722, 727 (N.D. Ala. 1981); EEOC v. Cuzzens of Georgia, 15 Fair Empl.
Prac. Cas. 1807 (N.D. Ga. 1977), rev’d on other grounds, 608 F.2d 1062 (5th Cir.
1979). This criterion has been further refined to the point that “[t]he critical
question to be answered then is: What entity made the final decisions regarding
employment matters related to the person claiming discrimination?” Odriozola v.
Superior Cosmetic Distributors, Inc., 531 F. Supp. 1070, 1076 (D.P.R. 1982).
6
701 F.2d 397, 404 (5th Cir. 1983) (footnotes omitted); see also Turner, 476 F.3d at 344
(analyzing Trevino factors to determine whether two entities acted as single employer under
Title VII).
Here, Aguiniga asserts that M.T. Poultry and the other Defendants were integrated
enterprises and thus should be deemed a single employer. But her Response [34] demonstrates
that she does not presently know whether her claim is true:
Plaintiff has no knowledge of the roles and/or contracts between the Defendants
as there was no signage in the plant to give her notice that any entity other than
Leyan [sic] Foods or MT Poultry were her employers. Plaintiff has become
aware that other entities, PMI Services and Southern Knights, have some role in
hiring and supervising personnel, but at this stage of the litigation, no discovery
having been done, Plaintiff cannot say specifically which of the Defendants, if not
all, are liable.
Pl.’s Mem. [23] at 2.
Aguiniga did try to supplement the record on these points with references to websites,
informal conversations, and M.T. Poultry’s Certificate of Good Standing with the Secretary of
State. Other than the certificate, the other information is beyond the scope of review under Rule
12(b)(6). See Fin. Acquisition Partners LP, 440 F.3d at 286; Causey, 394 F.3d at 288. And her
plea for discovery is likewise unavailing. “Because the court is directed to look solely at the
allegations on the face of the pleadings, discovery would not assist the Plaintiffs in defending the
12(c) motion.” Ackerson v. Bean Dredging LLC, 589 F.3d 196, 209 (5th Cir. 2009); see also
Ferrer v. Chevron Corp., 484 F.3d 776, 782 (5th Cir. 2007) (“[A Rule] 12(b)(6) inquiry focuses
on the allegations in the pleadings, not whether a plaintiff actually has sufficient evidence to
succeed on the merits.”).
7
So the Court must determine whether the factual averments Aguiniga actually made pass
the hybrid economic-realities/common-law-control tests or the test for integrated-enterprise
status (assuming it applies in this context). They do not. First, Aguiniga pleads that she
“formerly worked for the corporate defendants.” Compl. [1] ¶ 1. But she does not state which
one she worked for specifically, and any suggestion that it was all of them is conclusory and
speculative. Second, she avers that “Defendants are an employer, employment agency, or labor
organization within the meaning of 42 U.S.C. 2000e(b), (c), or (d).” Id. ¶ 10. But this statement
is merely a legal conclusion. See Twombly, 550 U.S. at 555 (finding as conclusory averment that
petitioners adopted a policy “‘because of,’ not merely ‘in spite of,’ its adverse effects upon an
identifiable group”).
In her most substantive attention to the issue, Aguiniga contends that Defendants have
the following relationships:
On information and belief, there is a division of responsibilities for the operation
of the plant among the corporate defendants. Upon information and belief, PMI
Services hires and pays employees on behalf of Leyen Foods and/or MT Poultry.
Upon information and belief, there is a relationship between PMI and Southern
Knights and that Southern Knights paid Salbador Delgado [the managerial
employee to whom she complained]. It is uncertain if PMI or Southern Knights
was the direct employer of a supervisor named Julio [the alleged harasser] (last
name unknown). Upon information and belief, under the law, all Defendants
would be responsible in some fashion for the acts described herein.
Compl. [1] ¶ 5.
These averments in paragraph five are a mix of legal conclusions, threadbare factual
assertions, and some factual content. But none addresses the hybrid economic-realities/commonlaw-control test or the Trevino factors for integrated-enterprise status. Most significantly,
Aguiniga has not plausibly shown that M.T. Poultry “made the final decisions regarding
8
employment matters” related to her. Trevino, 701 F.2d at 404. And the Certificate of Good
Standing she attached to her response does not plug this gap. See Certificate [22-1]. It merely
shows that M.T. Poultry and P.H. Foods share the same principal office address and
incorporator. Id. At bottom, there is simply not enough factual content to state a plausible claim
under Title VII that M.T. Poultry employed Aguiniga. Accordingly, the Title VII claims against
M.T. Poultry are dismissed.3
B.
NIED
All corporate Defendants assert that the NIED claim should be dismissed based on
worker’s compensation exclusivity. Plaintiff did not respond to this argument, so the motion is
granted.
C.
Dismissal Without Prejudice
Plaintiff failed to sufficiently allege: (1) which Defendant employed her; (2) that
Defendants not named in the EEOC charge shared an identity of interests with M.T. Poultry, the
entity she did name; or (3) that M.T. Poultry and her employer were integrated enterprises for
purposes of Title VII. But “a plaintiff’s failure to meet the specific pleading requirements should
not automatically or inflexibi[ly] result in dismissal of the complaint with prejudice to re-filing.”
Hart v. Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000). “Although a court may dismiss the
claim, it should not do so without granting leave to amend, unless the defect is simply incurable
or the plaintiff has failed to plead with particularity after being afforded repeated opportunities to
do so.” Id.
3
Had the claims against the other Defendants been exhausted, they would also fail for this
reason.
9
It is not apparent whether Aguiniga pleaded her best case, making it improper to
permanently close the courthouse doors on her claims. Accordingly, she will be given an
opportunity to seek leave to amend the Title VII claims. If she files such a motion, she must
attach a proposed amended complaint that addresses the deficiencies identified above.
IV.
Conclusion
The Court has considered all arguments. Those not addressed would not change the
results. For the reasons stated, Defendants’ motions to dismiss [13, 15, 17, and 29] are granted.
The Title VII claims against the moving Defendants are dismissed without prejudice. The NIED
claims are dismissed with prejudice. Finally, the parties are instructed to contact the magistrate
judge to set a telephonic conference during which they should discuss a new scheduling order
that includes a deadline for motions to amend.
SO ORDERED AND ADJUDGED this the 28th day of June, 2016.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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