Calandra v. Olenius et al

Filing 26

ORDER OF DISMISSAL. Case terminated on June 29, 2017. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JENNIFER MARIA CALANDRA,
Plaintiff,
vs.
LAUREN OLENIUS, et al,
Defendants.

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June 29, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:17-cv-00383

ORDER OF DISMISSAL
On April 25, 2017, this Court entered an Order granting 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. 14). The Court also, however, granted the pro se plaintiff, Jennifer Maria
Calandra (the “plaintiff”), an opportunity to file an amended complaint within 30 days of the date
of its Order, with the proviso that, since the plaintiff had failed to establish that the defendants
qualified as her former “employer” within the meaning of Title VII by employing the requisite
number of employees, “[t]o the extent that [she] intend[ed] to assert a cause of action [against the
defendants] under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), she
w[ould] still be required to establish that the defendants qualif[ied] as her “employer” within the
meaning of the ADA [and] her mere statement that she “counted” the number of employees
[would] not suffice.” (Id. at 4 - 5).
On May 18, 2017, the plaintiff filed a document with this Court entitled, “L3 Designs
Has More Than 20 Employees” and attached several numbered photographs as exhibits.
Specifically, on the first page of her filing, underneath the heading mentioned above, she asserts
the following:

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See Attached pictures.
Ms. Lauren Olenius terminated me from her company as a Manager of
Horticulture Maintenance Division, because she refused to write things down for
me, look at me when talking so I could read her lips or speak directly into my
hearing device. She and employees did not make sure I had their full attention
when speaking to me.
Many times, her Project Manager, Michael mumbled and put his hands over his
mouth, so I couldn’t read his lips. Michael was annoyed when I asked him to
draw an electrical design rather than explaining it to me.
The Office Manager, Peggy Torres thought it was funny that I would text her
questions from company phone, rather than asking her directly when we were in
the same office building.
Furthermore, when I didn't understand something, Ms. Olenius would not explain
further. If she replied to my email/text questions it would be with a question. I
felt like my hearing loss was too cumbersome for their busy landscape business.
(Dkt. No. 22 at 1). On the second page of her filing, she includes a table of contents denoting
photographs taken to purportedly track the defendants’ employees and their vehicles during
various dates throughout April and May of 2017. (See Dkt. No. 22).
Unfortunately, without more, the plaintiff’s amended filing, as presently composed,
suffers from numerous fatal flaws. The Court, for example, is unable to discern how it has
jurisdiction over this matter, the nature of the citizenship of the principal parties to the instant
lawsuit, how the plaintiff believes she was injured or legally wronged by the defendants, what
legal relief the plaintiff seeks or what the plaintiff is asking this Court to do for her.

In fact,

when construing the plaintiff’s latest filing in the liberal manner afforded to pro se complainants,
this Court finds no basis to support its exercise of federal jurisdiction over the plaintiff’s action.
See Brinkmann v. Johnston, 793 F.2d 111, 112 (5th Cir. 1986) (reasoning that pro se complaints
are to be liberally construed). First, the General Rules of Pleading, specifically Rule 8(a)(1) of
the Federal Rules of Civil Procedure, requires that a pleading, such as a complaint, contain “a

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short and plain statement of the grounds for the court’s jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional support.” Fed. R. Civ. P. 8(a)(1). In this
case, the plaintiff has failed to assert a basis for federal jurisdiction.
Second, even assuming the Court could presume a jurisdictional basis for the plaintiff’s
latest filing, her filing still runs afoul of the fundamental pleading requirements of Rule 8(a)(2),
as it fails to assert “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). Although a plaintiff is not required “to set out in detail the facts
upon which [s]he bases h[er] claim,” the Federal Rules do require “a short and plain statement of
the claim” being asserted so as to give “the defendant fair notice of the plaintiff’s claim and the
grounds upon which it rests.” Boudeloche v. Grow Chem. Coatings Corp., 728 F.2d 759, 762
(5th Cir. 1984); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 n.3, 127 S. Ct. 1955,
1965, 167 L. Ed.2d 929 (2007) (“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket
assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to
see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature
of the claim, but also ‘grounds’ on which the claim rests.”). Indeed, “Rule 8(a) ‘contemplate[s]
the statement of circumstances, occurrences, and events in support of the claim presented’ and
does not authorize a pleader’s ‘bare averment that he wants relief and is entitled to it.’”
Twombly, 550 U.S. at 555 n.3 (internal citation omitted). The plaintiff’s latest filing, as written,
is devoid of any factual statements denoting a claim for relief that is plausible on its face and
lacks sufficient detail from which this Court might draw an inference as to the defendants’
purported liability.
Third, assuming that the plaintiff, by way of her latest filing, intended to assert a claim
pursuant to the ADA, she has failed to establish that either defendant meets the applicable

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statutory definition of “employer” under the ADA. The term “employer” is defined within the
meaning of the ADA to include “a person engaged in an industry affecting commerce who [not
only] has 15 or more employees for each working day [but who also employs such employees]
in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of
such person.” 42 U.S.C. § 12111(5)(A) (emphasis added). Here, the defendants maintain that in
their landscaping and maintenance company they do not qualify as the plaintiff’s former
“employer” within the meaning of ADA 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. 23 at 5). 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 her response in opposition to the defendants’ motion to dismiss, tersely
asserts, without more, that this “case should not be dismissed because Lauren Olenius, Et Al. has
over 20 employees.” (Dkt. No. 24). The mere fact that the plaintiff has submitted photographs
of the defendants’ purported employees performing gardening activities during various dates in
April and May of 2017 is insufficient to establish that the defendants employed the requisite
number of employees during the requisite number of calendar weeks at the time of the plaintiff’s
employment from October of 2015 to February of 2016. As such, the plaintiff has not asserted
sufficient facts to plausibly allege that the defendants constituted her former “employer” within
the meaning of the ADA at the time of the conduct alleged. Accordingly, the plaintiff has failed
to state a claim upon which relief can be granted under the ADA and the defendants’ second
motion to dismiss should be GRANTED. See Minard v. ITC Deltacom Commc’ns, Inc., 447
F.3d 352, 357 (5th Cir. 2006) (finding that the employee-numerosity requirement is an ingredient

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or substantive element of a plaintiff’s claim for relief under the FMLA and acknowledging that
the same requirement applies under the ADA); see also Coder v. Medicus Labs., LLC, No. 4:14CV-7, 2014 WL 2984052, at *2 (E.D. Tex. July 2, 2014) (quoting French v. Ulayyet, 2011 U.S.
Dist. LEXIS 47345, at *3–4 (N.D. Tex. Apr. 14, 2011) (reasoning that the bright-line rule
enunciated in Arbaugh v. Y & H Corp. d/b/a The Moonlight Cafe, 546 U.S. 500, 516 (2006),
when applied to the ADA, mandates a finding that “th[e] numerosity requirement is an element
of an ADA claim and, if it is not satisfied, a case is properly the subject of a Rule 12(b)(6)
motion to dismiss.”)).
Based on the foregoing analysis and discussion, the defendants’ second motion to dismiss
is GRANTED and the plaintiff’s case is hereby DISMISSED.
It is so ORDERED.
SIGNED on this 29th day of June, 2017.
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Kenneth M. Hoyt
United States District Judge

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