Hernandez v. Unarco Industries, LLC

Filing 27

OPINION & ORDER by Magistrate Judge Kimberly E. West granting in part and denying in part 21 Motion to Dismiss Case for Failure to State a Claim. Plaintiff shall file a Second Amended Complaint no later than April 11, 2016. A Telephonic Scheduling Conference shall be conducted in this case on May 26, 2016 at 2:30 PM. The Court will initiate the conference call. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MARTHA HERNANDEZ, on behalf of
herself and others similarly
situated,
Plaintiff,
v.
UNARCO INDUSTRIES, a foreign
Limited Liability Company,
Defendant.

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Case No. CIV-15-001-KEW

OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Dismiss Amended Complaint (Docket Entry #21).

Plaintiff Martha

Hernandez (“Hernandez”) initiated this action on September 2, 2014
in

the

District

Court

in

and

for

Wagoner

County,

Oklahoma.

Defendant Unarco Industries (“Unarco”) removed the case to this
Court on January 2, 2015.

Once the case was removed, Hernandez

filed an Amended Complaint.

Key to a determination of the subject

Motion is a review of the specific allegations in this Amended
Complaint.
Hernandez alleges she is a female of Hispanic origin employed
by Defendant until her alleged termination after ten years of
employment.

She brings this action on behalf of herself and a

putative class designated as
Hispanic female persons who are now, have been, might
have been or might become employed . . . by Unarco at its
plants and offices since 1980 or before, and who have
been, and continue to be or might be adversely affected
by the practices complained of in this complaint.
Hernandez states that the majority of employees are Hispanic,

most of whom are undocumented aliens. She further alleges that she
and the putative class were terminated without fair cause due to
their

ethnicity

and

undocumented

status.

Hernandez

alleges

Hispanic women working at Unarco (1) do not feel they can use their
break time as liberally as non-Hispanics for fear of termination;
(2) have been terminated for filing workers compensation claims;
(3) have been terminated for using Unarco provided health care
benefits; and (4) have been injured on the job but are afraid to
use

their

healthcare

or

workers

compensation

for

fear

of

termination.
Hernandez also alleges Unarco has begun hiring temporary
service employees without benefits and permitting non-Hispanic
workers to be given permanent status after a year but not Hispanic
workers.

Additionally,

Hernandez

alleges

male

supervisory

employees have mistreated older Hispanic women, forcing them to do
difficult, labor intensive work.

The male supervisory employees

have also made sexual advances to subordinate female employees.
Hernandez brings this action under Title VII, the Oklahoma
Anti-Discrimination Act (Okla. Stat. tit. 25 § 1301 et seq.), and
42 U.S.C. § 1981.

She expressly states that the action is based

upon discrimination in employment on the basis of race, religion,
sex, and national origin.

Hernandez seeks (1) declaratory relief

finding Unarco in violation of Title VII, Oklahoma law, and Section
1981; (2) a permanent injunction prohibiting Unarco from continuing
discriminatory practices; (3) back pay and other monetary relief
for class members; (4) damages for mental distress for the class
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members; (5) punitive damages; (6) retention of jurisdiction for
enforcement of the injunctive relief; and (7) attorney’s fees and
costs.
Through the pending Motion, Unarco contends Hernandez’s claims
failed to meet the plausibility standard enunciated in United
States Supreme Court cases of Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Unarco
contends the Amended Complaint lacks legally supportive facts to be
maintained.
Clearly, Bell Atlantic changed the legal analysis applicable
to dismissal motions filed under Fed. R. Civ. P. 12(b)(6), creating
a “refined standard” on such motions.

Khalik v. United Airlines,

671 F.3d 1188, 1191 (10th Cir. 2012)(citation omitted).

Bell

Atlantic stands for the summarized proposition that “[t]o survive
a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

(2009) quoting Bell Atlantic, 550 U.S. at 570.

The Supreme Court

did not parse words when it stated in relation to the previous
standard that “a complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief” is “best forgotten as an incomplete, negative gloss
on an accepted pleading standard.”

Bell Atlantic,

550 U.S. at

546.
The Tenth Circuit has interpreted the plausibility standard as
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referring “to the scope of the allegations in the complaint:

if

they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs ‘have not nudged their
claims across the line from conceivable to plausible.’” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).

The Bell Atlantic

case, however, did not intend the end of the more lenient pleading
requirements of Fed. R. Civ. P. 8(a)(2). Khalik, 671 F.3d at 1191.
Rather, in Khalik, the Tenth Circuit recognized the United States
Supreme Court’s continued endorsement of Rule 8's “short and plain
statement” requirement in the case of Erickson v. Pardus, 551 U.S.
89 (2007) wherein the Supreme Court found “[s]pecific facts are not
necessary; the statement need only ‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.’”
Id. at 93.

It is against this backdrop that the sufficiency of

Hernandez’s Amended Complaint is evaluated.
Unarco first contends Hernandez was given an opportunity to
amend the Complaint by this Court but still failed to provide facts
specific to Hernandez rather than the uncertified class.
statement is not entirely accurate.

This

This Court conducted a

Scheduling Conference on February 26, 2015.

At the Conference,

Hernandez’s counsel requested leave to amend the Complaint in an
attempt to circumvent the arguments raised in Unarco’s original
motion to dismiss.

See Minute Sheet, Docket Entry #16.

As a part

of the normal scheduling process, the parties were given a deadline
to amend all pleadings or join additional parties.
Order, Docket Entry #17.

See Scheduling

This process was not a case where the
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merits of Unarco’s motion to dismiss were evaluated by the Court,
the Complaint was found lacking, and Hernandez was given an
opportunity to cure the deficiencies which the Court identified in
a ruling on the motion.

The process had not advanced to that point

as yet.
A review of the Amended Complaint reveals that Hernandez has
provided more generalized factual allegations which might apply to
the class as a whole but the case has not and cannot proceed to
that stage.

Hernandez must first establish her claims as a

representative of the class - which may or may not be certified in
the future.

This Court agrees with Unarco that the required

supportive facts for Hernandez’s discrimination claims are lacking
to the point of being illusory and implausible as stated, even at
this early stage of the proceedings.

In employment discrimination

cases, a plaintiff must go beyond mere recitals of discriminatory
elements based upon conclusory statements.

Khalik v. United Air

Lines, 671 F.3d 1188, 1193 (10th Cir. 2012).

Hernandez will be

given an opportunity to further amend the Complaint to correct this
deficiency.
Unarco also seeks dismissal of the claim based in 42 U.S.C.
§1981 since it does not support sex based discrimination.

Unarco

is correct that Section 1981 has been interpreted in this Circuit
as only a race-based discrimination statute and does not apply to
religious or gender based discrimination.

Runyon v. McCrary, 427

U.S. 160, 167 (1976); Shapolia v. Los Alamos Nat'l Lab., 992 F.2d
1033, 1036 n. 3 (10th Cir. 1993); Manzanares v. Safeway Stores,
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Inc., 593 F.2d 968, 971 (10th Cir. 1979).

Hernandez’s citation to

Carney v. City and County of Denver, 534 F.3d 1269 (10th Cir. 2008)
does not further her cause.

The claims in Carney were strictly

based in racial discrimination and retaliation under Section 1981.
Id. at 1271.

Again, this brings to light the carelessness of

language which Hernandez has employed in the Amended Complaint
which should be remedied in a further amendment.
Unarco also alleges that Hernandez failed to exhaust the
administrative remedies on all of her claims except the wrongful
termination claim because her EEOC charge was limited to that
claim.

Additionally, Unarco contends that the charge was only

brought on behalf of Hernandez individually and not on behalf of
other similarly situated class members.

As a result, Unarco

asserts this Court lacks subject matter jurisdiction over the nonexhausted claims.
Hernandez’s EEOC Charge of Discrimination was submitted May
22, 2014 and states as its basis
On February 7, 2014, I was threatened with suspension and
fired without justification. A company supervisor named
Javier unjustifiably accused me of failing to keep my
work area clean.
To the contrary, my work area was
clean. I have been a good employee of UNARCO for more
than ten (10) years.
Other Hispanic women have been
mistreated at work based on race and sex.
I believe that I have been discriminated against based on
race, national origin and sex, a violation of Title VII
of the Civil Rights Act of 1964, as amended.
Hernandez asserts the reference to “other Hispanic women” is
sufficient to put Unarco on notice of the class claims. This Court

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disagrees.

The case authority requires a separate and distinctly

class designated charge.
The Tenth Circuit held that “class action claims [are] barred
[by] failure to exhaust class administrative remedies.” Gulley v.
Orr, 905 F.2d 1383, 1385 (10th Cir. 1990). Since Gulley, the Tenth
Circuit has maintained that exhaustion of administrative remedies
on individual claims will not suffice to satisfy the exhaustion
requirement as to class claims.

See Ransom v. U.S. Postal Serv.,

170 Fed.Appx. 525, 528 (10th Cir. 2006)(“The brief reference made
[in the administrative complaint] to the maltreatment of other
employees did not qualify as a class complaint. Therefore, any
request for counseling pursuant to those claims was for individual
counseling only and cannot satisfy the counseling requirement for
class claims.”); Barrett v. Rumsfeld, 158 Fed.Appx. 89, 92 (10th
Cir. 2005)(“Plaintiffs' individual agency complaints, if any, are
inadequate to support jurisdiction over their class complaint
because administrative exhaustion of individual Title VII claims is
not

sufficient

to

exhaust

administrative

remedies

for

class

claims[.]”); Monreal v. Potter, 367 F.3d 1224, 1233 (10th Cir.
2004)(“[W]e have held that class claims cannot be exhausted through
an individual complaint[.]”)(emphasis in original); Persons v.
Runyon,

172

F.3d

879

(Table),

1999

WL

104427,

at

*2

(10th

Cir.)(“[W]e have consistently held that ‘exhaustion of individual
administrative remedies is insufficient to commence a class action
in federal court . . . one of the named plaintiffs must have
exhausted class administrative remedies' ”) (quoting Gulley v. Orr,
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905 F.2d at 1385); Belhomme v. Widnall, 127 F.3d 1214, 1217 (10th
Cir. 1997)(“A federal employee must exhaust his class action claim
with the EEOC before raising it in federal court, and exhaustion of
an individual Title VII claim is not sufficient to exhaust a class
action claim.”).

As a result, Hernandez’s class based claims

cannot be pursued in this Court as she failed to exhaust the
administrative remedy, thereby depriving this Court of jurisdiction
over those claims.
Unarco also contends Hernandez failed to exhaust her claims
other than those arising from her termination. On this point, this
Court

disagrees

with

the

movant.

Hernandez’s

charge

is

sufficiently broad to encompass other forms and instances of racial
and

sexual

discrimination

employment.

than

just

the

termination

of

her

Hernandez is forewarned, however, that the lack of

sufficient specificity in the facts and circumstances of the
discrimination claims she asserts against Unarco will imperil the
viability of her claims as further amendment will not be allowed,
absent exigent circumstances.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss
Amended Complaint (Docket Entry #21) is hereby GRANTED, in part, in
that the claims asserted on behalf of the putative class are hereby
DISMISSED

for

the

failure

to

exhaust

required

administrative

remedies.

The remainder of the Motion is hereby DENIED.

IT IS FURTHER ORDERED that Hernandez file a Second Amended
Complaint, reflecting the requirements set forth in this Opinion

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and Order no later than APRIL 11, 2016.
IT IS FURTHER ORDERED that a telephonic Scheduling Conference
be conducted in this case on MAY 26, 2016 at 2:30 p.m.

The Court

will initiate the telephone conference call.
IT IS SO ORDERED this 30th day of March, 2016.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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