Crosby v. Philip Holdings, LLC

Filing 19

MEMORANDUM AND ORDER on 9 MOTION to Dismiss Plaintiff's Section 1981 race discrimination and retaliation claims and Title VII retaliation claim.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
VANCE L. CROSBY,
Plaintiff,

§
§
§

§

v.

5

CIVIL ACTION NO. H-12-01749

§

PHILIP HOLDINGS, LLC d/b/a
PHILIP SERVICES CORPORATION,
Defendant.

5
§
§
§

MEMORANDUM AND ORDER
Pending

is

Defendant

PSC

Industrial

Outsourcing,

LP1s

("Defendant") Motion for Partial Dismissal (Document No. 9), which
seeks dismissal of Plaintiff Vance L. Crosby's ("Plaintiff")claims
of race discrimination and retaliation under 42 U.S.C.

§

1981 and

retaliation pursuant to Title VII of the Civil Rights Act of 1964
("Title VIIN).

In response to the motion, Plaintiff withdrew his

race and retaliation claims under 42 U.S.C.
consideration, therefore, is whether

§

1981.' Remaining for

Plaintiff exhausted his

administrative remedies on his retaliation claim under Title VII.
After carefully considering the motion, response, reply, and the
applicable law, the Court concludes as follows.

Document No. 10 at 1 n.1. Accordingly, Defendants' motion
to dismiss will be granted with respect to those claims, which are
DISMISSED.

I.

Backqround

Defendant employed Plaintiff as a truck driver from October
2002 to August

2005.

Plaintiff, a black man, alleges that

throughout his employment he was harassed by co-workers, who
frequently uttered racial slurs directed against him.

He alleges

that he complained to management but the harassment continued.
Plaintiff further alleges that he was "assigned work equipment that
was typically the oldest and/or in the least good repair."

And

finally, Plaintiff alleges that he was "terminated for alleged
policy violations, for improper conduct and insubordination,"
despite his having received consistently good job performance
ratings.
Plaintiff filed a Charge of Discrimination (the "Charge") with
the United States Equal Employment Opportunity Commission ("EEOC")
on September 19, 2005.

He did so by using EEOC Form 5, which

instructed the complainant to check "appropriate box (es) to denote
"
the basis of the alleged discrimination.

Of the nine bases for

which boxes were provided, Plaintiff checked only "Race."

On

September 27, 2007, the EEOC issued a determination, sustaining
Plaintiff's allegations of race discrimination. Plaintiff received
his Right-to-Sue letter on March 14, 2012 .3

Document No. 1 at 3 -4 (Orig. pet. )

I .at 2-4.
d

.

Plaintiff now sues

Defendant

not

retaliation.

only

for

race

discrimination

but

also

for

Defendant moves to dismiss the retaliation claim,

arguing that Plaintiff did not exhaust his administrative remedies
on that claim.
11.

Leqal Standards

Under Federal Rule of Civil Procedure 12 (b)(I), a party can
seek dismissal of an action for lack of subject matter jurisdiction. FED.R. CIV.P. 12 (b)(I).
component [ I

Standing to sue is an 'essential

of federal subject matter jurisdiction."

Dretke, 390 F.3d 358, 361 (5th Cir. 2004).
federal

jurisdiction

standing.

bears

the

burden

of

McCall v.

"The party invoking
establishing"

its

Steel Co. v. Citizens for a Better Env't, 118 S. Ct.

1003, 1017 (1998). The question of subject matter jurisdiction is
for the court to decide even if the question hinges on legal or
factual determinations.

See Ramminq v. United States, 281 F.3d

158, 161 (5th Cir. 2001) .
The Fifth Circuit distinguishes between "facial" and "factual"
attacks to subject matter jurisdiction.

Paterson v. Weinberqer,

644 F.2d 521, 523 (5th Cir. 1981) ; see also Irwin v. Veterans
Admin., 874 F.2d 1092, 1096 (5th Cir. 1989).

A facial attack

consists of a Rule 12(b) (1) motion unaccompanied by supporting
evidence, challenging the court's jurisdiction based solely on the

Document No. 9.

pleadings.

See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.

1990); Paterson, 644 F.2d at 523.

A factual attack, on the other

hand, involves submission of evidence extrinsic to the complaint.
Paterson, 644 F.2d at 523.
"plaintiff

is

also

In response to a factual attack, the

required

to

submit

facts

through

some

evidentiary method and has the burden of proving by a preponderance
of the evidence that the trial court does have subject matter
jurisdiction."

Paterson, 644 F.2d at 523; see also Irwin v.

Veterans Admin., 874 F.2d 1092, 1096 (5th Cir. 1989) .

In sum, a

court evaluating a motion to dismiss pursuant to Rule 12 (b)(1) may
consider (1) the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court's resolution of
disputed facts. Hartford Ins. Group v. Lou-Con Inc., 293 F.3d 908,
910 (5th Cir. 2002) .
Rule 12 (b)(6) provides for dismissal of an action for "failure
to state a claim upon which relief can be granted." FED. R. CIV. P.
12 (b)(6).

When a district court reviews the sufficiency of a

complaint before it receives any evidence either by affidavit or
admission, its task is inevitably a limited one.

See Scheuer v.

Rhodes, 94 S. Ct. 1683, 1686 (1974). The issue is not whether the
plaintiff ultimately will prevail, but whether the plaintiff is
entitled to offer evidence to support the claims.

I.
d

In considering a motion to dismiss under Rule 12(b) ( 6 ) , the
district court must construe the allegations in the complaint
favorably to the pleader and must accept as true all well-pleaded
facts in the complaint.

See

Lowrey v. Tex. A&M Univ. Svs., 117

F.3d 242, 247 (5th Cir. 1997).
must plead

To survive dismissal, a complaint

"enough facts to state a claim to relief that is

plausible on its face."

Bell Atl. Corp. v. Twomblv, 127 S. Ct.

"A claim has facial plausibility when the

1955, 1974 (2007).

plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged."
(2009).

While

allegations .

. .

a

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

complaint

"does not

need

detailed factual

[the] 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, 127 S. Ct. at 1964-65.'

It is unclear whether exhaustion of administrative remedies
falls under 12 (b)(1) or 12 (b)(6). See Pacheco v. Mineta, 448 F.3d
783, 788 n.7 (5th Cir. 2006) ("There is disagreement in this
circuit on whether a Title-VII prerequisite, such as exhaustion, is
merely a prerequisite to suit, and thus subject to waiver and
estoppel, or whether it is a requirement that implicates subject
matter jurisdiction."). Because the documents attached to the
parties' briefs all appear to be part of the Title VII administrative record, which is a public record, even if this issue properly
falls under a 12(b) (6) analysis, they may be considered without
converting this motion into one for summary judgment . See Green v.
Small, No. Civ. A. 05-1055(ESH), 2006 WL 148740, at * 6 n.4 (D.D.C.
Jan. 19, 2006) (finding in Title VII case that the documents in
administrative proceedings underlying the case were matters of
public record and could be considered in a 12(b) (6) motion without

111. Discussion
Before

pursuing

discrimination

claims

plaintiffs

must

in

federal

exhaust

court,

their

employment

administrative

remedies by filing a charge of discrimination with the EEOC.
Pacheco, 448 F.3d at 788; Taylor v. Books A Million, Inc., 296 F.3d
376, 378-79 (5th Cir. 2002).

"The scope of the exhaustion

requirement has been defined in light of two competing Title VII
policies that it furthers." Pacheco, 488 F.3d at 788. "On the one
hand, because 'the provisions of Title VII were not designed for
the sophisticated,' and because most complaints are initiated pro
se, the scope of the EEOC complaint should be construed liberally."
Id.
- (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463
(5th Cir. 1970); Fellows v. Universal Restaurants, Inc., 701 F.2d
447, 451 (5th Cir. 1983)).

' n the other hand, a primary purpose
O

of Title VII is to trigger the investigatory and conciliatory
procedures

of

the

EEOC,

in attempt

to

achieve non-judicial

resolution of employment discrimination claims."

I . at 788-89
d

(citing Sanchez, 431 F.2d at 466). Accordingly, the Fifth Circuit
"interprets what is properly embraced in review of a Title VII
claim

somewhat

broadly,

not

solely

by

the

scope

of

the

converting it into a motion for summary judgment); Lovelace v.
Software Spectrum Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996)
(stating that courts may consider matters of which it can take
judicial notice on a 12 (b)(6) motion and deciding that in
securities fraud case this includes public disclosure documents
filed with the SEC) .

administrative charge itself, but

by

the

scope of

the EEOC

investigation which 'can reasonably be expected to grow out of the
charge of discrimination.'"

- at
Id.

789.

In this regard, courts

must "engage in fact-intensive analysis of the statement given by
the plaintiff in the administrative charge, and look slightly
beyond its four corners, to its substance rather than its label."

I . (citations omitted).
d
Plaintiff does not dispute that he was required to exhaust his
administrative remedies on his retaliation claim, which is based on
alleged actions occurring prior to filing his Charge.

In his

Charge, Plaintiff checked only the box for discrimination based on
This failure is not "a
race, and not the box for retaliati~n.~
fatal error," however.

Sanchez, 431 F.2d at 463.

"[Tlhe crucial

element of a charge of discrimination is the factual statement
contained therein."

- at
Id.

Likewise, his factual statement

462.

described several recurring incidents of racial hostility and
discrimination against him, but

never mentioned

or spoke of

retaliation. Plaintiff's Charge provides the following narrative:
I. Effective August 8, 2005, my employment as a
Liquid Tanker Driver was terminated.
Throughout my
employment I was harassed by co-workers and intimidated
with job loss by the supervisors. The equipment assigned
to me was always the oldest and/or in the least good

Document No. 9, ex. 2.
7

repair. The manner in which I was addressed included
racial slurs and innuendoes of a race-tainted bias. The
n-word was used with impunity and management did nothing
to discourage its repeated use in my presence.
11. Rick Griffin, Operations Manager, discharged me
for disorderly conduct, but he failed to discipline nonBlack employees in the same manner.
Reports to
supervisors about the racial bias were left unaddressed.
Promises of new and better equipment, including trucks,
were never delivered.
111. I believe that I was subjected to discriminatory
actions because of my race, Black, in violation of title
VII of the Civil Rights Act of [I9641 , as amended.7
Plaintiff's complaint before this Court does not allege any
In
specific act of retaliati~n.~ response to the present motion,
however, Plaintiff argues that in the two sentences of Paragraph I1
of the Charge alleging discriminatory discharge based on race and
his

reports

to

supervisors

of

racial

bias

that

were

left

unaddressed, "Plaintiff is clearly making a complaint of retaliation

including

harassment.

'I9

but

not

limited

to

termination

and

further

Plaintiff also cites to the EEOCfs Letter of

Determination, and a memorandum and notes from EEOC investigators,
arguing that

''[ilt

is clear therefrom that Plaintiff made a

Document No. 9, ex. 2.
Document No. 1 at 5.
Plaintiff's Original Complaint
IDefendant illegally retaliated against Plaintiff because
alleges:
he complained of maltreatment.
Defendant had no legitimate
business reasons for any of such acts. Each act of retaliation is
in violation of the applicable anti-retaliation provision." d
.
Document No. 10 at 4.

complaint of retaliation including but not limited to ridicule and
further harassment."1°
The latter conclusions are not supported by a plain reading of
the Charge and the exhibited records of the EEOC investigation.
Plaintiff alleges that he complained to management of discrimination, but his Charge is not that he was retaliated against for
engaging in that protected activity but rather that management did
nothing in response to his complaints about racial bias. Moreover,

none of the EEOC documents relied on by
or

discussed

retaliation--a violation

Plaintiff mentioned

well

known

to

EEOC

investigators--even though the EEOC fully sustained Plaintiff's
allegations that he was a victim of race discrimination.
'applicable

standard

is

not

[the]

scope

of

[the]

The

actual

investigation, but what we reasonably would expect the EEOC to
investigate." Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1281 n.9
(5th Cir. 1994) (citing Youns v. City of Houston, 906 F.2d 177,
179-80 (5th Cir. 1990))

.

Nevertheless, the "investigation of a

particular claim creates a strong inference that such a claim was
presented."

I .at 1280. Here, on the other hand, where after an
d

actual investigation the EEOC found numerous incidents of race
discrimination but, when the investigation ended, made no reference
to or finding that there was or was not retaliation, it is

Document No. 10 at 5, exs. B, D, E.
9

reasonable to infer that the EEOC did not believe that Plaintiff
had

complained

of

statement did not

retaliation

and

that

reasonably require it

investigation of retaliation.

Plaintiff's

factual

to conduct an EEOC

In sum, Plaintiff did not file in

the EEOC either an express or implied charge of retaliation.

See

Burlinqton N. and Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2416
(2006) ("the [retaliation] standard is tied to the challenged
retaliatory act, not the underlying conduct that forms the basis of
the Title VII complaint"). Plaintiff therefore did not exhaust his
administrative remedies for a retaliation claim.

See, e.g.,

Blanchet v. Chevron/Texaco C o r ~ . ,
368 F. Supp. 2d 589, 593 (E.D.
Tex. 2004) (statement in her charge that she complained to members
of

the

management

did

not

exhaust

administrative remedy on

retaliation claim when no allegation made that she was retaliated
against based on this report); Perez v. MCI World Com Commc'ns, 154

F. Supp. 2d 932, 936, 938

(N.D. Tex. 2001)

(statement that

plaintiff was discharged did not exhaust administrative remedy on
retaliation

claim

when

the

only

facts

alleged

concerned

confrontation with co-worker ex-boyfriend). Accordingly, it is

ORDERED that Defendant PSC Industrial Outsourcing, LP1sMotion
for Partial Dismissal (Document No. 9) is GRANTED as to Plaintiff's

Title VII retaliation claim and this claim is DISMISSED with
prejudice .
The Clerk will enter this Order, providing a correct copy to
all parties of record.
SIGNED at Houston, Texas, on this

day of November, 2012.

P

UN

NG WERLEIN, JR .
STATES DISTRICT JUDGE