Calandra v. Olenius et al
ORDER. The plaintiff is hereby GRANTED 30 days from the date of this Order to file an amended pleading alleging a viable cause of action against the defendants. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
JENNIFER MARIA CALANDRA,
LAUREN OLENIUS, et al.,
April 25, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:17-CV-00383
This matter is before the Court on the defendants’, Lauren Olenius and Olenius Holdings,
LLC (collectively, the “defendants”), motion to dismiss the plaintiff’s complaint for failure to
state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 8).
The plaintiff, Jennifer Maria Calandra (the “plaintiff”), proceeding pro se, has failed to file a
response and the time for doing so has long elapsed. Thus, pursuant to this Court’s local rules,
the plaintiff’s “[f]ailure to respond will be taken as a representation of no opposition.” S.D. Tex
L.R. 7.4. After having carefully considered the motion, the pleadings, and the applicable law,
the Court determines that the defendants’ motion to dismiss should be GRANTED.
The plaintiff commenced the instant action on January 31, 2017, alleging that the
defendants terminated her employment because she is deaf in violation of Title VII.
February 18, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a
Dismissal and Notice of Rights Letter to the plaintiff informing her that “[b]ased upon its
investigation, the EEOC is unable to conclude that the information obtained establishes
violations of the statutes.” (Dkt. No. 1). It further advised the plaintiff of her right to file a
lawsuit against the defendant within 90 days of her receipt of the notice. (Id.)
The defendants now move to dismiss the plaintiff’s complaint, asserting that she has
failed to: (1) plead facts evidencing a claim that is plausible on its face; (2) satisfy the statutory
prerequisites of her Title VII claim because the defendants do not qualify as the plaintiff’s
former “employer” within the meaning of Title VII; and (3) file her lawsuit within the ninety-day
limitation period required by Title VII. This Court agrees.
First, the plaintiff attempts to assert a claim under Title VII for discrimination on the
basis of her disability—her profound hearing loss or deafness. Title VII makes it “an unlawful
employment practice for an employer . . . to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion, sex or
national origin.” 42 U.S.C. § 2000e-2(a)(1). It does not, however, protect against discrimination
on a basis of one’s disability. See Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007) (citing
42 U.S.C. § 2000e-2) (other citations and quotations omitted). Accordingly, the plaintiff has
failed to state a claim under Title VII upon which relief can be granted and her complaint should
Second, even assuming the plaintiff has stated a viable claim under Title VII, she has,
nonetheless, failed to satisfy the statutory prerequisites of her Title VII claim. In order to be held
liable under Title VII, a defendant must fall within Title VII’s definition of an “employer.”
Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994). The term “employer” is defined within
the meaning of Title VII to include “a person engaged in an industry affecting commerce who
has fifteen or more employees for each working day in each of twenty or more calendar weeks in
the current or preceding calendar year, and any agent of such a person.” 42 U.S.C. § 2000e(b)
(emphasis added). Here, the defendants maintain that they do not qualify as the plaintiff’s
former “employer” within the meaning of Title VII because, during the 2015 calendar year, the
number of employees who worked for them “hovered between 13 and 16 employees but never
for a period of twenty or more calendar weeks.” (Dkt. No. 8 at 4). They further contend that the
plaintiff did not work for them for twenty or more calendar weeks because she was hired on
October 7, 2015 and was terminated on February 2, 2016. The plaintiff, in contrast, does not
dispute their contentions. It is well-settled that an employment discrimination claim against an
employer that does not meet Title VII’s definition of an “employer” fails to state a claim upon
which relief can be granted. See Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006) (explaining
that “the threshold number of employees for application of Title VII is an element of a plaintiff’s
claim for relief”); see also Muhammad v. Dallas Cnty. Cmty. Supervision & Corrs. Dep’t, 479
F.3d 377, 380 (5th Cir. 2007) (reasoning that determining whether a defendant qualifies as an
“employer” under Title VII involves a two-step process: first, a court must ascertain whether the
defendant meets Title VII’s statutory definition of an “employer” and second, a court must
evaluate whether an employer-employee relationship exists between the parties) (internal
citations omitted). Therefore, the plaintiff’s Title VII claim also fails due to the plaintiff’s
inability to satisfy Title VII’s statutory prerequisites.
Finally, the plaintiff has failed to file her lawsuit within the 90-day period required by
Title VII. A civil action brought pursuant to Title VII must be commenced within ninety days
after receipt of the right-to-sue letter issued by the EEOC. See Berry v. CIGNA/RSI-CIGNA, 975
F.2d 1188, 1191 (5th Cir. 1992) (citing 42 U.S.C. § 2000e-5(f); Price v. Digital Equip Corp.,
846 F.2d 1026, 1027 (5th Cir. 1988)). The Fifth Circuit has held that “the 90–day period of
limitation established by 42 U.S.C. § 2000e–5(f)(1) begins to run on the date that the EEOC
right-to-sue letter is delivered to the offices of formally designated counsel or to the claimant.”
Ringgold v. Nat'l Maint. Corp., 796 F.2d 769, 770 (5th Cir. 1986) (internal citations omitted).
“The ninety-day filing requirement is a statutory precondition to maintaining a cause of action in
federal court . . . and is treated as a statute of limitations for all purposes.” Mitchell v. Champs
Sports, 42 F. Supp.2d 642, 646 (E.D. Tex. 1998) (citing Espinoza v. Missouri Pac. R.R., 754
F.2d 1247, 1248 n.1 (5th Cir. 1985) (internal citations omitted)). As such, “[c]ourts within this
Circuit have repeatedly dismissed cases in which the plaintiff did not file a complaint until after
the ninety-day limitation period had expired.” See Taylor v. Books A Million, Inc., 296 F.3d 376,
379 (5th Cir. 2002).
In this case, the plaintiff did not file her lawsuit until January 31, 2017—almost a year
after the EEOC issued its Dismissal and Notice of Rights Letter to her on February 18, 2016.
Although the plaintiff maintains that she never received the EEOC’s initial issuance of its
Dismissal and Notice of Rights Letter on February 18, 2016 due to a typographical error in the
zip code, she nevertheless, obtained notice of its findings so as to permit her to submit a request
to the EEOC on November 9, 2016, asking it to reconsider its findings. (See Dkt. No. 1). It is
also important to note that the EEOC’s original letter to her was not returned as undeliverable.
(Id.) In any event, even assuming the timeliness of her lawsuit, the plaintiff’s Title VII claim
still fails on the grounds set forth above and must be DISMISSED.
Notwithstanding the aforementioned, the plaintiff is hereby GRANTED 30 days from the
date of this Order to file an amended pleading alleging a viable cause of action against the
To the extent that the plaintiff intends to assert a cause of action under the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), she will still be required to
establish that the defendants qualify as her “employer” within the meaning of the ADA—her
mere statement that she “counted “ the number of employees will not suffice. This extension is
not an invitation to file a frivolous lawsuit.
It is so ORDERED.
SIGNED this 25th day of April, 2017.
Kenneth M. Hoyt
United States District Judge
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