Butler v. Texas Health And Human Services

Filing 19

MEMORANDUM AND ORDER on #5 MOTION to Dismiss #1 Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6); Motion is GRANTED as to Plaintiff's claim that she was retaliated against for filing a workers' compensation claim and her claims under the ADEA, and these claims are DISMISSED with PREJUDICE; motion is CONDITIONALLY GRANTED as to Plaintiff's hostile work environment claim, and that claim will be DISMISSED with PREJUDICE without further order of the Court unless Plaintiff, within 21 days after the date of the entry of this Order, files a more definite statement in the form of a First Amended Complaint; motion is DENIED as to Plaintiff's claims for retaliation for filing an EEOC charge, disparate treatment, and discriminatory discharge, which claims all remain for adjudication.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FLORENCE K. BUTLER,

§
§
§

Plaintiff,

§
§
§
§
§
§
§

v.

TEXAS HEALTH AND HUMAN
SERVICES COMMISSION,
Defendant.

CIVIL ACTION NO. H-13-1030

MEMORANDUM & ORDER
Pending
Commission's

is

Defendant
to

Dismiss

Health

and

Plaintiff's

Human

Services

Original

Complaint

Pursuant to Federal Rule of Civil Procedure 12 (b) (6)

(Document

No.5).

Motion

Texas

After considering the motion, response, reply, sur-reply,

response to the sur-reply,

other filings made by Plaintiff,

and

applicable law, the Court concludes as follows.
I.
Pro

se Plaintiff

Background

Florence

K.

Butler

("Plaintiff")

was

an

employee of Defendant Texas Health and Human Services Commission
("Defendant")

until

her

termination

in

alleges that while employed by Defendant,

1 Document No.1 at 8 of 8 (Complt.).

May

2012.1

Plaintiff

she was subj ected to

harassment
(black),

and

a

hostile

work

religion (Methodist)

environment

and age

(45).2

based

on

her

race

In September 2010,

Plaintiff filed a Charge of Discrimination ("the 2010 Charge") with
the United States Equal Employment Opportunity Commission ("EEOC"),
complaining

of

Defendant's

alleged

actions. 3

discriminatory

plaintiff contends that she suffered retaliation for filing this
initial

charge and for

filing a workers

I

compensation claim.4

SpecificallYI Plaintiff alleges that her requests to transfer to
another department
employees

I

were

denied

in

favor

of younger

I

non-black

and that she was terminated on the basis of "false and

exaggerated claims'l concerning her performance. 5
Plaintiff subsequently filed a second Charge of Discrimination
(the "2012 Charge") with the EEOC. 6

She did so by using EEOC Form

51 which instructed the complainant to check "appropriate box(es)"

to denote the basis of the alleged discrimination. 7
bases

for which boxes were provided l

2

Id.

3

Id.

4 Id. at 2 of 8.
5

Id. at 8 of 8 .

6

Id.

7

Id.
2

Of the nine

Plaintiff checked "race,

II

"retaliation,"

"age," and "religion."B

On January II,

EEOC issued a Dismissal and Notice of Rights.

2013,

the

9

Plaintiff now brings suit against Defendant for discriminatory
discharge,

disparate

treatment,

hostile

work

environment,

and

retaliation in violation of Title VII and the Age Discrimination in
Employment Act ("ADEN'). 10

Defendant moves to dismiss, arguing that

Plaintiff failed to exhaust the administrative remedies and timely
file an EEOC charge for her retaliation claim and that she failed
to allege sufficient facts to support her retaliation and hostile
work environment claims. l l

Defendant further alleges that it is

immune from Plaintiff's ADEA claims. 12
II.

Legal Standard

Rule 12(b) (6) provides for dismissal of an action for "failure
to state a claim upon which relief can be granted."
12 (b) (6) .

When a

district

court

reviews

the

FED.

R. CIV. P.

sufficiency of a

complaint before it receives any evidence either by affidavit or
admission,

its task is inevitably a limited one.

Rhodes, 94 S. Ct. 1683, 1686 (1974).

B

Id.

9

Id.

at 6 of 8.

10

Document No. 1 at 8 of 8.

11

Document No.5 at 3-8.

12

Id.

at 3-4 n.2.
3

See Scheuer v.

The issue is not whether the

plaintiff ultimately will prevail,

but whether the plaintiff is

entitled to offer evidence to support the claims.

Id.

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
117

in the

F.3d 242,

247

Lowrey v.

See

complaint.

(5th Cir.

Tex.

To

1997).

A&M Uni v.

survive

Sys.,

dismissal,

a

complaint must plead "enough facts to state a claim to relief that
is plausible on its face."
1955,

1974

(2007).

Bell Atl. Corp. ·v. Twombly, 127 S. Ct.

"A claim has facial

plausibility when the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

misconduct alleged."
(2009) .

While

a

that

the

defendant

Ashcroft v.
complaint

is

liable

Iqbal,

129 S.

Ct.

"does

not

need

for

1937,

detailed

the
1949

factual

[the] allegations must be enough to raise a right

allegations . .

to relief above the speculative level, on the assumption that all
the allegations in the complaint are true
fact)."

(even if doubtful in

Twombly, 127 S. Ct. at 1964-65.
III.

Analysis

Because Plaintiff is proceeding pro se, her Complaint is held
to a less stringent standard than if her pleadings were drafted by
an attorney.

Taylor v. Books A Million,

(5th Cir. 2002).

Inc., 296 F.3d 376, 378

It is therefore appropriate to read Plaintiff's

4

Complaint as consisting of her Employment Discrimination Complaint
Form and the documents she attaches thereto, the EEOC Dismissal and
Notice of Rights, and her 2012 Charge. 13
Huntleigh Corp.,

119 Fed.

Appx.

666

See

(5th Cir.

Clark

2005)

v.

(analyzing

attachments to pro se plaintiff's complaint, including EEOC charge,
to find that he had adequately pleaded his discrimination claim)
see also McGruder v. Phelps,

608 F.2d 1023, 1025

i

(5th Cir. 1979)

("In view of the liberality accorded to the pleadings of Pro se
petitioners

we find that the district

treated the materials
however

denominated,

judge should have

filed by plaintiff on January 17,
as

an

amendment

to

his

complaint

1979,
or

an

addi tion in the nature of an amendment.") . 14
A.

ADEA Claims
Plaintiff alleges that Defendant discriminated against her on

the basis of her age in violation of the ADEA, and Defendant argues
that it has immunity from such a claim under the Eleventh Amendment

13

Document No.1.

Although Defendant moves to dismiss Plaintiff's claims "in
their entirety," Defendant presents no argument to dismiss
Plaintiff's disparate treatment and discriminatory discharge claims
contained in Plaintiff's 2012 Charge, which is considered part of
her Complaint.
Defendant evidently did not consider the 2012
Charge as part of the Complaint or may believe that a motion for
summary judgment is better suited for pretrial consideration of
those claims.
14

5

_._--_._.._---_._------ ---_.

to the United States Constitution .15

"Congress has not abrogated

Eleventh Amendment immunity from ADEA claims,
voluntarily waived its immunity."
Sci.

Ctr.,

217

Fed.

Appx.

and Texas has not

Sullivan v. Univ. of Tex. Health

391,

395

(5th

Cir.

2007)

(holding

plaintiff's suit against defendant, an arm of the state, was barred
by the Eleventh Amendment).
agency,

Accordingly, as Defendant is a state

it is immune from suit under the ADEA,

and Plaintiff's

claims under the ADEA are dismissed with prejudice.
B.

Retaliation Claim
Defendant moves to dismiss Plaintiff's claim that

she was

retaliated against for filing a workers' compensation claim. 16

A

workers' compensation claim is not a protected activity under Title
Jimenez v. Potter, 211 Fed. Appx. 289, 290

VII.

(5th Cir. 2006)

(affirming summary judgment for defendant on grounds that filing
workers'

compensation claim was not a

'protected acti vi ty,'

as

required to support plaintiff's claim that two-month demotion was
in retaliation for having filed claim).

15

Id.

Accordingly, Plaintiff's

at 8 of 8.

16 Defendant evidently did not consider the 2012 Charge to be
part of Plaintiff's Complaint, as required by the Fifth Circuit,
see Clark, 119 Fed. Appx. 666; McGruder, 608 F.2d at 1025, and thus
did not brief grounds to dismiss Plaintiff's claim that she was
retaliated against for filing the 2010 Charge.
The latter claim
remains to be determined.

6

claim

for

retaliation

based

on

the

filing

of

a

workers'

compensation claim is dismissed with prejudice.
C.

Hostile Work Environment Claim
Defendant asserts that Plaintiff has failed to state a claim

for

hostile

work

Title

environment.

VII

is

violated

when

a

"workplace is permeated with discriminatory intimidation, ridicule,
. that is sufficiently severe or pervasive to alter

and insult

the conditions of the victim's employment and create an abusive
Inc.,

114 S.Ct.

(quotation marks and citations omitted).

Plaintiff

working environment."
367, 370 (1993)
alleges

that

she

was

Harris v.

Forklift Sys./

"subjected

to

derogatory

comments

and

behaviors by employees and management related to my age, race, and
religion," but does not describe the contents of these statements,
or point
insult.

to

any other

incidents

of

intimidation,

ridicule,

or

Plaintiff has failed to allege sufficient facts to state

a claim for hostile work environment.
The Federal Rules of Civil Procedure counsel that "leave to
amend 'shall be freely given when justice so requires.'"
v. Davis, 83 S. Ct. 227,230 (1962)
Accordingly,

See Foman

(quoting FED. R. CIV. P. 15(a)).

Plaintiff's claim for hostile work environment

conditionally dismissed unless Plaintiff, within twenty-one

is

(21)

days after the entry of this Order files a more definite statement

7

in the form of a First Amended Complaint that alleges a hostile
work environment claim upon which relief can be granted. 17
IV.

Order

For the foregoing reasons, it is
ORDERED
Commission's

that
Motion

Defendant
to

Texas

Dismiss

Health

Plaintiff's

and

Human Services

Original

Complaint

Pursuant to Federal Rule of Civil Procedure 12 (b) (6)

(Document

No.5) is GRANTED as to Plaintiff's claim that she was retaliated
against for filing a workers'

compensation claim and her claims

under the ADEA, and these claims are DISMISSED with PREJUDICE.

The

motion is CONDITIONALLY GRANTED as to Plaintiff's hostile work
environment claim, and that claim will be DISMISSED with PREJUDICE
without further order of the Court unless Plaintiff, within twentyone (21) days after the date of the entry of this Order,

files a

more definite statement in the form of a First Amended Complaint
that amends her hostile work environment claim to state a claim
upon which relief can be granted.

Defendant's motion is DENIED as

17 In her Response,
Plaintiff states for the first time that
her claims also arise under the Fair Labor Standards Act (FLSA).
Document NO.7 at 2 of 9.
"When a pro se plaintiff raises a new
claim for the first time in response to a motion to dismiss, the
district court should construe the new claim as a motion to amend
the complaint under Fed. R. Civ. P. 15(a)." King v. Life School,
809 F. Supp. 2d 572, 581 (N. D. Tex. 2011). However, Plaintiff
does not explain in her Response how the FLSA was violated.
If
Plaintiff wishes to pursue a claim under the FLSA, she must timely
file a motion for leave to amend alleging the facts underlying such
a claim.

8

to Plaintiff's claims for retaliation for filing an EEOC charge,
disparate treatment, and discriminatory discharge, which claims all
remain for adjudication.
The Clerk will enter this Order, providing a correct copy to

t;;r

all counsel of record.

SIGNED ln Houston, Texas, on this

~ of

October, 2013.

,..
N
RLEIN, JR.
STATES DISTRICT JUDGE

9