Hernandez v. Unarco Industries, LLC
OPINION & ORDER by Magistrate Judge Kimberly E. West granting in part and denying in part 34 Motion to Dismiss Case for Failure to State a Claim. (adw, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MARTHA HERNANDEZ, on behalf of
herself and others similarly
UNARCO INDUSTRIES, a foreign
Limited Liability Company,
Case No. CIV-15-001-KEW
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Dismiss Plaintiff’s Second Amended Complaint (Docket Entry #34).
The beginnings of this case has suffered through a series of fits
As this Court has set out in several instances in
previous Orders but is in need of repeating, Plaintiff Martha
Hernandez (“Hernandez”) initiated this action on September 2, 2014
Defendant Unarco Industries (“Unarco”) removed the case to this
Court on January 2, 2015.
After Unarco filed a Motion to Dismiss,
Hernandez filed an Amended Complaint.
Unarco then filed a Motion
to Dismiss related to the allegations and claims asserted in the
On March 30, 2016, this Court entered an
Opinion and Order on Unarco’s Motion, finding (1) Hernandez’s
discrimination claims based in Title VII lacked factual foundation
in the Amended Complaint; (2) Hernandez’s claim based in 42 U.S.C.
§ 1981 was not supported in the facts as a race-based claim; (3)
Hernandez failed to exhaust her administrative remedies on the
class-based claims; and (4) Hernandez had sufficiently exhausted
her administrative remedies with regard to her racial and sexual
As a result, Hernandez’s class claims were
dismissed and she was given an opportunity to amend the Complaint
once again to cure the deficiencies in the factual allegations
supporting the discrimination claims.
To that end, Hernandez filed a Second Amended Complaint. This
Court is required to once again review the factual allegations and
legal claims for their sufficiency and plausibility.
Hernandez alleges she is a female of Hispanic origin employed
by Defendant until her alleged termination on February 7, 2014
after ten years of employment.
She states that she was terminated
“because she was a full-time Hispanic female worker” and that
“Unarco has terminated all full time Hispanic workers who do not
have adequate documentation.”
Hernandez states Hispanic female employees, including her,
compensation claims when injured as non-Hispanic employees do for
fear of being terminated.
Hernandez then sets out a list of
fourteen Hispanic employees of Unarco who have been terminated for
using their healthcare benefits.
Hernandez is not among the
She concludes, however, by stating “Plaintiff
was afraid to use her health benefits for fear of termination.”
Hernandez asserts in the Second Amended Complaint that Unarco
has begun hiring temporary service employees without benefits in
lieu of full time employees with benefits and permitting non2
Hispanic workers to be given permanent status after a year but not
undocumented, female Hispanic employee with benefits making her
more vulnerable to termination.
Female Hispanic workers were also
allegedly laid off first, including Plaintiff.
Hernandez alleges male supervisory employees have mistreated older
subordinate Hispanic women, forcing them to do difficult, labor
The male supervisory employees have also made
sexual advances to subordinate female employees and identifies an
employee who was allegedly terminated for reporting this conduct to
Hernandez alleges that she was caused “stress knowing
it could happen to her.”
She further alleges that management used
coming in late to work as a pretext to fire despite her not having
a history of being late while allowing non-Hispanic workers to be
late “without consequences.”
Hernandez also includes allegations that (1) male supervisors
allowed non-Hispanic mail workers preferences in clocking in and
out, work breaks, smoke breaks, and cell phone use such that
female, Hispanic workers had to return to work immediately under
fear of termination but non-Hispanic male workers did not; (2) male
employees were available to work.
Male workers had to turn down
the overtime before Hernandez would get it. Hernandez alleges this
has worked to her financial detriment; (3) male supervisors reduced
Hernandez’s pay on the pretext that she had been receiving the pay
of an overseer when she did not; (4) male co-workers swore at
Hernandez but, when reported, management ignored her; (5) Hernandez
reported excessive cell phone use by male non-Hispanic employees to
management only to be told not to pay attention to it; and (6)
Hispanic workers, including females, were always given the most
hazardous jobs, including pipe bending and cutting resulting in
injuries to the workers.
Hernandez brings this action under Title VII of the Civil
Rights Act of 1964, as amended (42 U.S.C. §§ 2000e, et seq.) and
the Oklahoma Anti-Discrimination Act (Okla. Stat. tit. 25 § 1301 et
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 and Oklahoma law; (2) a
discriminatory practices; (3) Unarco to “make whole those persons
adversely affected by the policies and practices” which were
discriminatory to the female, Hispanic employees, including back
pay and reimbursement for lost benefits; (4) damages for mental
distress; (5) punitive damages;(6) retention of jurisdiction for
enforcement of the injunctive relief; and (7) attorney’s fees and
Through the pending Motion, Unarco again 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 centers on the fact that the factual allegations in
the Second Amended Complaint are too vague and do not relate to
actions taken against Hernandez herself.
Unarco first urges that this Court should dismiss any claims
which Hernandez may be asserting on behalf of others.
Hernandez appears to have unsuccessfully massaged the allegations
in the Amended Complaint, which contained class action references,
without completely removing all of the references to Unarco’s
previously dismissed the claim for class action status.
extent Hernandez asserts claims against Unarco on behalf of other
female Hispanic workers, those claims are dismissed in accordance
with the prior Opinion and Order.
To the extent they represent
individual claims, the factual allegations concerning others adds
little to the required pleading of a factual basis for her claims
but do not warrant striking or dismissal of Hernandez’s claims.
Unarco next contends the allegations pertaining to Hernandez
individual claims are entirely conclusory.
Without striving to be
repetitive, the legal framework to evaluate Hernandez’s claims
Bell Atlantic requires 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 Tenth Circuit has provided guidance in interpreting the
plausibility standard as 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
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
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 v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
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.
Certainly, in considering the sufficiency of Hernandez’s
Complaint an evaluation of “the elements of each alleged cause of
Khalik, 671 F.3d at 1192.
Title VII precludes
conditions of employment because of their race, color, religion,
sex, or national origin.
42 U.S.C. § 2000e-2(a)(1).
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), Hernandez is required to show a prima facie case
protected class; (2) she suffered an adverse employment action; (3)
she qualified for the position at issue; and (4) she was treated
less favorably than others not in the protected class. Khalik, 671
F.3d at 1192 citing Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531
(10th cir. 1998).
Hernandez has alleged that she is a member of the protected
classes based upon her sex, her race, and her national origin. She
alleged that she suffered adverse employment actions in less
favorable treatment while she was employed in the conditions of her
employment and in her termination.
She worked in the position for
at least ten years so she presumably was qualified for the position
for which she was employed.
Hernandez has also alleged she was
treated less favorably than non-members of the protected classes in
which she belongs.
Unarco’s challenges to Hernandez’s statements
as “conclusory” require a level of specificity not legally mandated
by the latest case authority.
To be sure, Hernandez’s Second
multitude of facts which do not assist in the establishment of her
But it is also not so deficient to be considered lacking
plausibility and places Unarco on sufficient notice of the claims
asserted against it.
Unarco also asserts Hernandez has only set forth conclusory
allegations in support of her claim for wrongful termination.
Hernandez has alleged she was “terminated without fair cause”, “on
the pretext that she had failed to keep her work area clean”, and
Second Amended Complaint, ¶ 8.
Again, while this
statement is sparse on specificity, Hernandez has set forth facts
actionable under Title VII.
Finally, Unarco contends Hernandez failed to adequately plead
“any other disparate treatment claims”, challenging the litany of
allegedly discriminatory practices Hernandez set forth in the
Second Amended Complaint.
This more generalized objection is best
ferreted out through the crucible of discovery and subsequent
dispositive motion practice rather than at this early stage of the
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss
Plaintiff’s Second Amended Complaint (Docket Entry #34) is hereby
GRANTED, in part, in that the claims asserted on behalf of others
to the extent Hernandez intended to do so are hereby DISMISSED.
The remainder of the Motion is hereby DENIED.
IT IS SO ORDERED this 23rd day of January, 2017.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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