Obinyan v. Prime Therapeutics LLC et al

Filing 104

MEMORANDUM OPINION AND ORDER granting 97 Motion to Dismiss for Failure to State a Claim filed by Alliance Rx Walgreen Prime, and granting plaintiff leave to replead. (Ordered by Senior Judge Sidney A Fitzwater on 10/31/2019) (Senior Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
OKOEGUALE OBINYAN,
Plaintiff,
VS.
PRIME THERAPEUTICS LLC, et al.
Defendants.

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§ Civil Action No. 3:18-CV-0933-D
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MEMORANDUM OPINION
AND ORDER
Plaintiff Okoeguale Obinyan (“Obinyan”) sues defendant Walgreens Specialty
Pharmacy Holdings, LLC (“WSPH”)1 for race and national origin discrimination and
retaliation. WSPH moves to dismiss. For the reasons that follow, the court grants the
motion but grants Obinyan leave to replead.
I
This is a pro se action by plaintiff Obinyan, seeking to recover on claims of race and
national origin discrimination and retaliation, in violation of Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Obinyan is a former employee of Prime
Therapeutics LLC (“Prime”).

Obinyan brought this lawsuit against Prime, WSPH,

Walgreens, Robert Half International Inc. (“Robert Half”), Penelope Boyd-Gear (“BoydGear”), and Mark Mason (“Mason”). The court has dismissed Obinyan’s claims against all

1

Obinyan’s complaint incorrectly names WSPH as “Alliance Rx Walgreen Prime.”
See Aug. 13, 2019 Order at 1.

defendants other than WSPH.2
WSPH now moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), contending that
because Obinyan has not filed with the Equal Employment Opportunity Commission
(“EEOC”) a charge of discrimination against WSPH, he has failed to properly exhaust his
administrative remedies as required by Title VII; that Obinyan cannot, as a matter of law or
fact, establish a prima facie case of discrimination or retaliation against WSPH because, as
Obinyan acknowledges in his complaint, WSPH was not his employer; and that even if
Obinyan’s claims could be properly asserted against WSPH, his allegations that he was
excluded from meetings, denied overtime, and laid off after complaining of an allegedly
“dubious” report do not amount to adverse employment actions or protected activity for
purposes of his disparate treatment and retaliation claims. Obinyan opposes WSPH’s
motion.
II
In deciding WSPH’s Rule 12(b)(6) motion, the court evaluates the sufficiency of
Obinyan’s complaint by “accept[ing] ‘all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th

2

On January 18, 2019 the court adopted the magistrate judge’s December 13, 2018
findings, conclusions, and recommendation and granted the motion to dismiss filed by
defendants Walgreens, Robert Half, Mason, and Boyd-Gear; granted the motion to dismiss
for insufficient service of process filed by defendant Prime; and entered a final Fed. R. Civ.
P. 54(b) judgment in favor of Robert Half, Walgreens, Mason, and Boyd-Gear. On February
12, 2019 the court entered a final Rule 54(b) judgment in favor of Prime. Obinyan has
appealed the January 18, 2019 order.
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Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464,
467 (5th Cir. 2004)). To survive a motion to dismiss, Obinyan must allege 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). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 545 (“Factual
allegations must be enough to raise a right to relief above the speculative level[.]”).
“[W]here 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.’” Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)). Furthermore,
under Rule 8(a)(2), a pleading must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Although “the pleading standard Rule 8
announces does not require ‘detailed factual allegations,’” it demands more than “labels and
conclusions.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). And “a formulaic
recitation of the elements of a cause of action will not do.” Id. (quoting Twombly, 550 U.S.
at 555). Because Obinyan is proceeding pro se, the court construes the allegations of the
complaint liberally. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) (per curiam); SEC v. AMX,
Int’l, Inc., 7 F.3d 71, 75 (5th Cir. 1993) (per curiam).

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III
WSPH moves to dismiss on the ground that Obinyan did not exhaust his
administrative remedies because he did not file an EEOC charge of discrimination against
WSPH.
A
“It is well settled that courts may not entertain claims brought under Title VII as to
which an aggrieved party has not first exhausted his administrative remedies by filing a
charge of discrimination with the EEOC.” Kretchmer v. Eveden, Inc., 2009 WL 854719, at
*3 (N.D. Tex. Mar. 31, 2009) (Fitzwater, C.J.) (citing Taylor v. Books A Million, Inc., 296
F.3d 376, 378-79 (5th Cir. 2002) (“Employment discrimination plaintiffs must exhaust
administrative remedies before pursuing claims in federal court. Exhaustion occurs when the
plaintiff files a timely charge with the EEOC and receives a statutory notice of right to
sue.”)), aff’d, 374 Fed. Appx. 493 (5th Cir. 2010). “This requirement serves the dual
purposes of affording the EEOC and the employer an opportunity to settle the dispute
through conciliation, and giving the employer some warning as to the conduct about which
the employee is aggrieved.” Hayes v. MBNA Tech., Inc., 2004 WL 1283965, at *3 (N.D.
Tex. June 9, 2004) (Fitzwater, J.) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 44
(1974); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)). Because
exhaustion of administrative remedies in a Title VII case is an affirmative defense,3

3

The Supreme Court recently held, in Fort Bend County, Texas v. Davis, ___ U.S.
___, 139 S.Ct. 1843 (2019), that the exhaustion requirement of Title VII is a mandatory
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defendants are not entitled to dismissal of Obinyan’s Title VII claims on this basis unless it
appears from the face of the complaint that Obinyan has not exhausted his administrative
remedies. Id.
B
In his EEOC charge of discrimination, which Obinyan attaches to his complaint,4 he
does not list WSPH as his employer. As a general rule, “a party not named in an EEOC
charge may not be sued under Title VII.” E.E.O.C. 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 “[a]
party not named in an EEOC charge may still face suit if there [is] sufficient identity-ofinterest between the named and the unnamed party,”5 Chandra v. Bowhead Science &
procedural rule, “not a jurisdictional prescription delineating the adjudicatory authority of
courts,” resolving a conflict among the courts of appeals over whether Title VII’s
charge-filing requirement is jurisdictional. Id. at 1851.
4

In deciding defendant’s motion, the court is permitted to consider this document,
which is attached to the complaint. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594
F.3d 383, 387 (5th Cir. 2010).
5

Courts in the Fifth Circuit consider the following four factors to determine
“identity-of-interest”:
(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 [party] 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 proceeding; (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
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Technology, LLC, 2017 WL 2729967, at *7 (N.D. Tex. June 26, 2017) (Boyle, J.) (internal
quotation marks omitted) (quoting Simbaki, 767 F.3d at 482), or if the “unnamed party has
been provided with adequate notice of the charge, under circumstances where the party has
been given the opportunity to participate in conciliation proceedings aimed at voluntary
compliance,” Simbaki, 767 F.3d at 483 (quoting Eggleston v. Chicago Journeymen
Plumbers’ Local Union No. 130, U.A., 657 F.2d 890, 905 (7th Cir. 1981)).
Obinyan only lists Prime as his employer in his charge of discrimination. In response
to WSPH’s motion to dismiss, however, he asserts that “he became an employee of
AllianceRx Walgreens Prime after March 31, 2017, Walgreens Boots Alliance and pharmacy
benefit manager Prime Therapeutics LLC closed a transaction to form a combined central
specialty pharmacy and mail services company, AllianceRx Walgreens Prime.” P. Br. 3.
Assuming arguendo that, in referring to “AllianceRX Walgreens Prime,” Obinyan intended
to refer to WSPH, it appears that Obinyan is arguing that as a result of some sort of merger,
Prime and WSPH became a combined entity during his period of employment. Setting aside
Obinyan’s failure to plead these alleged facts,6 the court cannot conclude, based solely on the

relationship with the complainant is to be through the named
party.
Hartz v. Adm’rs of Tulane Educ. Fund, 275 Fed. Appx. 281, 286 (5th Cir. 2008) (per curiam)
(alteration in original) (quoting St. Cyr v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 540
F. Supp. 889, 891-92 (S.D. Tex. 1982)).
6

Not only has Obinyan not pleaded these facts, he continues to incorrectly refer to
WSPH as “AllianceRx Walgreens Prime.”
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face of the complaint, that WSPH and Prime either do not have an identity of interest or that
WSPH did not have adequate notice of Obinyan’s EEOC charge. Accordingly, the court
denies WSPH’s motion to dismiss on the ground that Obinyan did not exhaust his
administrative remedies as to WSPH.
IV
The court next considers WSPH’s second ground for dismissal, i.e., that Obinyan does
not allege that WSPH was his employer.
A
Title VII prohibits an “employer” from discriminating against “any individual . . .
because of such individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. §
2000e-2(a). Similarly, the statute prohibits an “employer” from discriminating against “any
of his employees or applicants for employment . . . because he has opposed any practice
made an unlawful employment practice[.]” Id. § 2000e-3(a). “As Title VII prohibits
discrimination in the employment context, generally only employers may be liable under
Title VII.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)
(citation omitted) (citing Oden v. Oktibbeha Cty., Miss., 246 F.3d 458, 462 (5th Cir. 2001)).
This means that, to establish Title VII liability on the part of a particular defendant, the
plaintiff must prove both that the defendant meets Title VII’s definition of “employer,” i.e.,
“a person engaged in an industry affecting commerce who has fifteen or more employees .
. . , and any agent of such a person . . . ,” Muhammad v. Dallas County Community
Supervision & Corrections Department, 479 F.3d 377, 380 (5th Cir. 2007) (quoting 42
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U.S.C. § 2000e(b)), and that “an employment relationship exists between the plaintiff and
the defendant,” id. (citing Deal v. State Farm County Mutual Insurance Co., 5 F.3d 117, 118
n.2 (5th Cir. 1993)).
B
Obinyan’s complaint refers only to defendant Prime. See Compl. at 1, 4 (alleging “[I]
was given a poor evaluation based false unsubstantiated allegation without due process to
Prime policies,” and “Prime violated its own attendance policy by placing me on a final
warning for using 3 of the 7 days available to me for unscheduled absences.”). He lists his
place of employment as “Prime Therapeutics llc.” Id. at 6. And in his charge of
discrimination, which Obinyan has attached to his complaint, Obinyan only lists Prime as his
employer. Id. at 10. Nowhere in his compliant or in his charge of discrimination does
Obinyan plead that WSPH is his employer or even mention WSPH. He has certainly not
plausibly alleged, even under the more liberal standard applied to pro se pleadings, that
WSPH was his employer for purposes of his Title VII claim.
Although, as discussed above, Obinyan alleges in his response brief that after March
31, 2017 he became an employee of “AllianceRx Walgreens Prime,” (which the court
assumes arguendo refers to WSPH), he does not plead any of these facts in his complaint.
This court has repeatedly held that, when ruling on a motion to dismiss, the court does not
consider additional facts that are alleged in a response brief but not in the complaint. See
Wilson v. Deutsche Bank Tr. Co. Ams., 2019 WL 2578625, at *4 (N.D. Tex. June 24, 2019)
(Fitzwater, J.) (citing Leal v. McHugh, 731 F.3d 405, 407 n.2 (5th Cir. 2013); Roubinek v.
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Select Portfolio Servicing Inc., 2012 WL 2358560, at *3 n.2 (N.D. Tex. June 21, 2012)
(Fitzwater, C.J.)); see also Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257, 263 (5th Cir.
2008) (“[W]hen deciding, under Rule 12(b)(6), whether to dismiss for failure to state a claim,
the court considers, of course, only the allegations in the complaint.”). Accordingly, because
Obinyan has failed to plead that WSPH was his employer for purposes of his Title VII claim,
or that there was an employment relationship between Obinyan and WSPH, the court grants
WSPH’s motion to dismiss Obinyan’s claims asserted against it.7
V
Although the court is dismissing Obinyan’s claims against WSPH, it will grant him
leave to replead. It is the practice of this court to afford litigants “at least one opportunity
to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are
incurable.” See In re Am. Airlines, Inc., Privacy Litig., 370 F.Supp.2d 552, 567-68 (N.D.
Tex. 2005) (Fitzwater, J.) (quoting Great Plains Tr. Co. v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 329 (5th Cir. 2002)). Furthermore, in granting leave to replead, the court
takes into consideration that Obinyan is proceeding pro se. See, e.g., Smallwood v. Bank of
Am., 2012 WL 32654, at *5 (N.D. Tex. Jan. 6, 2012) (Fitzwater, C.J.) (granting leave to file
third amended complaint because plaintiffs were appearing pro se). Because Obinyan has
not stated that he cannot, or is unwilling to, cure the defects that the court has identified, the

7

Because the court is dismissing Obinyan’s claims against WSPH on this ground, it
does not address WSPH’s third ground for dismissal, i.e., that Obinyan has failed to plead
an adverse employment action.
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court grants him 28 days from the date this memorandum opinion and order is filed to file
a first amended complaint against WSPH.8 WSPH may move anew to dismiss the first
amended complaint if it has grounds to do so.
*

*

*

Accordingly, for the reasons explained, the court grants WSPH’s motion to dismiss
but grants Obinyan leave to replead his claims against WSPH.
SO ORDERED.
October 31, 2019.

_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE

8

In granting Obinyan leave to amend, the court is permitting Obinyan to replead his
claims against WSPH only. Obinyan may not use his amended complaint to reassert his
claims against Walgreens, Robert Half, Mason, Boyd-Gear, or Prime, each of whom has been
dismissed by Rule 54(b) final judgment.
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