Bouchlal v. Professional Automotive Relocation Services Inc et al

Filing 34

MEMORANDUM OPINION AND ORDER - The Court GRANTS Defendants' Motion to Dismiss her claims, DENIES Ms. Bouchlal's Motion for Leave to Amend her complaint as futile, and DISMISSES her claims with prejudice. A final judgment will issue separately. (Ordered by Judge Ed Kinkeade on 3/25/2024) (chmb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
HIND BOUCHLAL,
Plaintiff,
v.
PROFESSIONAL AUTOMOTIVE
RELOCATION SERVICES, INC. and
PARS BH, INC.,
Defendants.

§
§
§
§
§
§
§
§
§
§
§

Civil No. 3:23-CV-01280-K

MEMORANDUM OPINION AND ORDER
Before the Court are Defendants Professional Automotive Relocation Services,
Inc. (“PARS”) and PARS BH, Inc.’s (“PARS BH”) Rule 12(b)(6) Motion to Dismiss
Plaintiff’s Complaint (the “Motion to Dismiss”) and Brief in support thereof, Doc.
Nos. 19–20, Plaintiff Hind Bouchlal’s Response to Defendants’ Rule 12(b)(6) Motion
to Dismiss, Doc. No. 25, Defendants’ Reply Memorandum in Support of Their
Rule 12(b)(6) Motion to Dismiss Plaintiff’s Complaint, Doc. No. 26, Ms. Bouchlal’s
Motion to Amend Complaint and Supporting Brief (the “Motion for Leave to
Amend”), Doc. No. 24, Defendants’ Memorandum of Law in Opposition to Plaintiff’s
Motion to Amend Complaint, Doc. No. 27, and Ms. Bouchlal’s Reply in Support of
Her Motion to Amend Complaint. Doc. No. 29.
Upon consideration of the parties’ submissions, the Court GRANTS
Defendants’ Motion to Dismiss, DENIES Ms. Bouchlal’s Motion for Leave to Amend

1

her complaint, and DISMISSES Ms. Bouchlal’s claims with prejudice in their entirety.
This is an unfortunate case in which allegations of wrongdoing must go unaddressed
because Ms. Bouchlal failed to timely file a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”). Ms. Bouchlal admits that she filed
a charge too late, but asserts that circumstances outside her control prevented an earlier
filing and tolled the deadline. She says that the EEOC stopped hosting in-person visits
during the COVID-19 pandemic and that hackers prevented her from accessing the
EEOC’s online portal. Because Ms. Bouchlal’s allegations do not show that she was
unable to file her charge with the EEOC by means other than in-person or online
communication or that anyone misled her about the charge-filing process, the Court
cannot accept her tolling argument. It must dismiss her untimely claims.
The origin of this case lies at the end of 2020, when Hind Bouchlal, a resident
of Dallas County, sought employment with PARS, a company that provides logistics
services to other firms. Doc. No. 1 ¶¶ 1, 7–12. One of the services it offers is sending
drivers to pick up vehicles, inspect or repair them if necessary, and drive them to new
locations. Id. ¶ 7.
PARS hired Ms. Bouchlal as a driver. Id. ¶ 12. She then began to notice
differences in the way PARS treated her and the way it treated her male colleagues. Id.
¶¶ 12–31. While PARS told male drivers what they would get paid for a drive before
they took it, PARS allegedly concealed the same information from Ms. Bouchlal. Id.
¶ 14.

Ms. Bouchlal says she eventually learned that PARS was exploiting this

2

information gap by paying her lower rates for her drives. Id. She allegedly also learned
that PARS was reimbursing male drivers for time and expenses for which they were not
reimbursing her. Id. ¶¶ 15–17. On multiple occasions, PARS allegedly changed the
length or other terms of Ms. Bouchlal’s drives after she accepted them but would not
compensate her for the changes even though it compensated male drivers in similar
situations. Id. ¶¶ 20–23.
In addition to this unequal treatment, Ms. Bouchlal complains of a variety of
other allegedly discriminatory conduct by PARS. Among other things, she states that
her supervisor directed verbal abuse to her but not to any of the male drivers whom
she asked about his behavior and that a human resources employee tried to avoid
accepting an email report from her explaining that she was the victim of a sexual assault
committed by a third party during a drive for PARS. Id. ¶¶ 25–30.
PARS terminated Ms. Bouchlal in April 2021, shortly after her attempted report.
See id.; Doc. No. 24-1 ¶ 32; Doc. No. 25 at 3. In a proposed amended complaint, she
describes what happened next. Doc. No. 24-1. She contacted the EEOC through its
online portal in July to complain about PARS and its New York affiliate, PARS BH,
whom she describes as her “joint or co-employer[].” Doc. No. 1 ¶ 11; Doc. No. 24-1
¶ 32. In the fall of 2021, she spoke to an EEOC investigator three times. Doc. No. 241 ¶¶ 33–34. At this point, Ms. Bouchlal believed she had done what she needed to do
to file a charge of discrimination with the agency. Id. ¶ 34.

3

Ms. Bouchlal called the EEOC investigator repeatedly in 2022 to obtain updates
on her inquiry but got no response. Id. She says she could no longer check the EEOC’s
online portal for updates because hackers stole her identity, changed her portal
password, and took control of the phone she used to approve log-in requests pursuant
to the EEOC’s two-step authentication procedure. Id. ¶¶ 33–34. She also says that
visiting the EEOC’s offices was not an option because they were closed to visitors as a
result of the COVID-19 pandemic. Id. ¶ 32. Evidence submitted by PARS and PARS
BH indicates that the EEOC closed Ms. Bouchlal’s online inquiry on December 23,
2021 because Ms. Bouchlal stopped communicating with the agency. Doc. No. 20-2
at 4.
Around January 2023, after the EEOC’s offices reopened to visitors,
Ms. Bouchlal arranged an in-person visit and learned that she needed to sign a charge
of discrimination. See Doc. No. 24-1 ¶ 35. She signed one on March 6, 2023. Id.
Three months later, Ms. Bouchlal filed a complaint in this Court under Title VII
of the Civil Rights Act of 1964 (“Title VII”). Doc. No. 1. She alleged that PARS and
PARS BH sexually harassed her and retaliated against her for attempting to report her
sexual assault. Id. ¶¶ 32–38. PARS and PARS BH moved to dismiss the claims against
them because Ms. Bouchlal did not timely file her charge of discrimination. Doc.
No. 19. Ms. Bouchlal conceded that her filing was facially untimely, and, although the
time for amending pleadings had expired, she moved for leave to amend her complaint
to allege a basis for equitably tolling the filing deadline. Doc. No. 25 at 2; Doc. No. 24.

4

The Court agrees with the parties that Ms. Bouchlal’s claims are barred unless
some circumstance tolled her charge-filing deadline. A Texas plaintiff may not pursue
a Title VII sex discrimination claim unless she exhausts her administrative remedies by
filing a charge of discrimination within three hundred days of the alleged
discrimination. Stith v. Perot Sys. Corp., 122 F. App’x 115, 117 (5th Cir. 2005); 42
U.S.C.S. § 2000e-5(e); see also Griffin v. City of Dallas, 26 F.3d 610, 612–13 (5th Cir.
1994). Ms. Bouchlal acknowledges that she submitted her charge more than three
hundred days after Defendants ended any discrimination against her by terminating
her.

Doc. No. 25 at 3.

Since her operative complaint contains no allegations

supporting an extension of the three hundred day filing period, the Court dismisses her
claims for failure to exhaust administrative remedies.
The parties’ real dispute centers on Ms. Bouchlal’s motion to amend to her
complaint to add allegations that purportedly explain why principles of equitable
tolling require an extension of the filing period. Doc. No. 24 at 3. Because the motion
comes after the Court’s deadline for amending pleadings, the Court would ordinarily
review it under a two-step procedure. Doc. No. 17 at 2. First, the Court would ask
whether there is good cause to modify its scheduling order under Federal Rule of Civil
Procedure 16(b), which would require Ms. Bouchlal to show that she could not
reasonably meet the amendment deadline despite the exercise of diligence. Olivarez v.
T-Mobile USA, Inc., 997 F.3d 595, 602 (5th Cir. 2021). Second, the Court would ask
whether the proposed amendments were appropriate under Federal Rule of Civil

5

Procedure 15(a), which permits the amendment of pleadings in the absence of a
substantial reason for denying amendment. Id.; Mandujano v. City of Pharr, 786 F.
App’x 434, 438 (5th Cir. 2019) (per curiam). The Court concludes that Ms. Bouchlal’s
amendment motion cannot succeed at the second step, so it does not consider the first.
The Court denies Ms. Bouchlal’s proposed amendments under Rule 15(a)
because her failure to exhaust her administrative remedies remains fatal to her claims
even if her amended allegations are true. See Jones v. Univ. of Texas Sw. Med. Ctr., 2023
WL 2920842, at *6 (N.D. Tex. Apr. 12, 2023) (Boyle, J.). Although Ms. Bouchlal asks
for equitable tolling of her deadline to file a charge of discrimination, none of the
amended allegations describe the sort of extraordinary circumstances that equitable
tolling requires. DeLeon v. Gen. Insulation, Inc., 575 F. App’x 292, 293 (5th Cir. 2014)
(per curiam). Ms. Bouchlal’s allegations recount her interviews with and calls to an
EEOC investigator, her mistaken belief that she did what she needed to do to file a
timely charge, and her difficulties communicating with the EEOC after its offices
stopped accepting visitors and hackers prevented her from accessing the EEOC’s online
portal. Doc. No. 29 at 7. While these facts may show that Ms. Bouchlal made a good
faith error about what she needed to file with the EEOC and how she could file it, they
do not show that there was any obstacle preventing her from timely filing her charge.
The root cause of Ms. Bouchlal’s delay in submitting her charge appears to be a
simple mistake of law, which is not a proper basis for equitable tolling. After having
preliminary conversations with an EEOC investigator, Ms. Bouchlal wrongly assumed

6

that she did not need to do more to file a charge of discrimination. Doc. No. 24-1
¶ 34. This led her to spend about fourteen months trying call the investigator for status
updates rather than filing a charge. Id. The Court cannot write off all this time through
equitable tolling of the filing period. Unless the EEOC (or perhaps the defendant)
induced the mistake, a plaintiff who errs in her analysis of Title VII is still bound by
its deadlines. Hull v. Emerson Motors/Nidec, 532 F. App’x 586, 588–89 (5th Cir. 2013)
(per curiam); Tillison v. Trinity Valley Elec. Coop., Inc., 204 F. App’x 346, 348 (5th Cir.
2006) (per curiam); see also Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th
Cir. 1991) (reaching the same result under the ADEA); Chappell v. Emco Mach. Works
Co., 601 F.2d 1295, 1303 (5th Cir. 1979) (holding that plaintiff could not rely on the
assurances of a Texas Employment Commission employee). Ms. Bouchlal does not
allege that the EEOC or anyone else led her into her error, so she must bear its
consequences. Doc. No. 24-1 ¶ 34.
Ms. Bouchlal contends that extraordinary circumstances would have limited her
ability to file a charge even if she realized she had not filed one, but her allegations
show no serious impediment to filing. Doc. No. 29 at 6–7. Her argument rests on her
assertions that the EEOC stopped welcoming in-person visitors during the COVID-19
pandemic and that she could not access her EEOC portal due to third-party hacking of
her electronic devices and accounts. Doc. No. 24-1 ¶¶ 32–35. This might well have
prevented her from filing a charge in person or online. It nonetheless leaves open the
possibility that Ms. Bouchlal could have filed a charge by other means.

7

EEOC rules state that a “charge may be made . . . by facsimile, or by mail,” as
alternatives to filing in person or online. 29 C.F.R. § 1601.8. The EEOC added the
“facsimile” language during the pandemic and left the “mail” language intact. See
Procedural Regulations Under Title VII, ADA, and GINA, 85 Fed. Reg. 65,214 (Oct.
15, 2020) (codified at 29 C.F.R. § 1601.8). At least two courts have refused to extend
the deadline for filing a charge of discrimination where a plaintiff proved capable of
filing his charge by facsimile during the COVID-19 pandemic. See Bruce v. Stonemor
Partners L.P., 2021 WL 2949780, at *4 (D. Md. July 14, 2021) (denying equitable
tolling of Title VII deadline); HavMmeri v. Methodist Health Sys. of Dallas, 2023 WL
4712206, at *6–7 (N.D. Tex. June 16, 2023) (Rutherford, M.J.) (denying equitable
tolling and Rule 6 extension of state law deadline where plaintiff filed through the
EEOC), rep. & rec. adopted, 2023 WL 4707998 (N.D. Tex. July 24, 2023) (Brown, J.).
The Court concludes that Ms. Bouchlal’s allegations stop short of showing that
external circumstances prevented her from filing a timely charge by facsimile or mail
and therefore fail to support equitable tolling of her charge-filing deadline. Courts
routinely deny equitable tolling of filing deadlines when the plaintiff’s preferred filing
methods become inconvenient or unusable but other methods remain available. E.g.,
Wilson v. Sec’y, Dep’t of Veterans Affs., 65 F.3d 402, 405 (5th Cir. 1995) (per curiam),
as amended on denial of reh’g (Nov. 1, 1995) (plaintiff could have filed appeal through
attorney rather than overseas mail); Vaughans v. Delta Health Grp., Inc., 180 F.3d 264,
1999 WL 310375, at *1 (5th Cir. 1999) (per curiam) (plaintiff could have filed charge

8

by mail rather than in person); Pugh-Perry v. New York City Hum. Res. Admin., 2009 WL
10706512, at *4 (E.D.N.Y. Mar. 19, 2009) (plaintiff could have handwritten
complaint using forms in clerk’s office rather than filing online), rep. & rec. adopted, No.
07-cv-04050 (E.D.N.Y. June 2, 2009), aff’d in relevant part, 402 F. App’x 588, 589 (2d
Cir. 2010) (per curiam); Robinson v. Dep’t of Homeland Sec. Off. of Inspector Gen., 71 F.4th
51, 59 (D.C. Cir. 2023) (plaintiff could have filed complaint in person or electronically
rather than by mail); Coleman v. New York City Dep’t of Health & Mental Hygiene, 2022
WL 704304, at *3 (S.D.N.Y. Mar. 9, 2022) (plaintiff could have filed charge online
rather than in person). When Ms. Bouchlal could no longer visit EEOC offices or
access the EEOC’s online portal, she should have filed her charge of discrimination by
mail, facsimile, or, if possible, another viable method. See Milner v. City of Montgomery,
2021 WL 218728, at *3–4 (M.D. Ala. Jan. 21, 2021) (despite possible mistake of law,
plaintiff should have filed his charge by mail when he could no longer file with the
EEOC online).
Because Ms. Bouchlal did not properly exhaust her administrative remedies and
because her proposed amendments to her pleading do not provide a basis for tolling
her deadline to do so, the Court GRANTS Defendants’ Motion to Dismiss her claims,

9

DENIES Ms. Bouchlal’s Motion for Leave to Amend her complaint as futile, and
DISMISSES her claims with prejudice. A final judgment will issue separately.
SO ORDERED.
Signed March 25th, 2024.
____________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE

10