Moody v. Chevron Phillips Chemical Company LP
MEMORANDUM OPINION AND ORDER GRANTING #10 MOTION to Dismiss Plaintiff's Original Petition (Signed by Judge Gray H Miller) Parties notified.(jguajardo, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CHERYL P. MOODY,
CHEVRON PHILLIPS CHEMICAL COMPANY LP,
June 30, 2017
David J. Bradley, Clerk
CIVIL ACTION H-17-1490
MEMORANDUM OPINION AND ORDER
Pending before the court is defendant Chevron Phillips Chemical Company LP’s (“Chevron”)
motion to dismiss. Dkt. 10. After considering the motion, record, and applicable law, the court is
of the opinion that Chevron’s motion to dismiss should be GRANTED.
This is an employment discrimination dispute. Cheryl P. Moody was employed by Chevron
and claims that in the approximately forty years of her employment she never received the respect
she deserved and was not appreciated. Dkt. 1-5 at 4; Dkt. 10-1 at 4. Moody further alleges that
during the course of her employment, she was subject to discrimination and a hostile work
environment. Dkt. 1-5 at 4. She claims that on February 25, 2016, she was “pressured into retiring.”
Dkt. 10-1 at 4. On December 19, 2016, she dual-filed complaints with the U.S. Equal Employment
Opportunity Commission (“EEOC”) and Texas Workforce Commission (“TWC”), in which she
contended that she was the subject of discrimination on the basis of age, sex, and race between
November 2015 and February 2016. Id. On January 13, 2017, she received a notice of her right to
sue from the EEOC. Dkt. 10-2 at 2.
Thereafter, on April 13, 2017, she filed this claim in the 61st Judicial District Court of Harris
County, Texas. Dkt. 1-5; Dkt. 1 at 1. She asserts the following causes of action: (1) retaliation in
violation of her First and Fourteenth Amendment rights, actionable under 42 U.S.C. Section 1983;
(2) discrimination on the basis of “age, race, national origin, color and ethnicity” in violation of Title
VII and Texas Labor Code Chapter 21; and (3) negligence or negligence per se. Dkt. 1-5 at 6–7.
On May 15, 2017, Chevron removed the case to this court. Dkt. 1. On May 19, 2017, Chevron filed
this motion to dismiss, arguing, among other things, that Moody’s complaint “solely asserts legal
conclusions that cannot survive a motion to dismiss.” Dkt. 10 at 11. The court agrees.
II. LEGAL STANDARD
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127
S. Ct. 1955, 1964–65 (2007). In considering a Rule 12(b)(6) motion to dismiss a complaint, courts
generally must accept the factual allegations contained in the complaint as true. Kaiser Aluminum
& Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). The court
does not typically look beyond the face of the pleadings, and attachments thereto, in determining
whether the plaintiff has stated a claim under Rule 12(b)(6). Collins v. Morgan Stanley Dean Witter,
224 F.3d 496, 498 (5th Cir. 2000); Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). “[A]
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,
[but] a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555 (citations omitted). The “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Id. The supporting facts must be plausible enough
to raise a reasonable expectation that discovery will reveal further supporting evidence. Id. at 556.
Moody raises essentially three causes of action against Chevron: (1) retaliation in violation
of her First and Fourteenth Amendment rights, actionable under 42 U.S.C. Section 1983; (2)
discrimination on the basis of “age, race, national origin, color and ethnicity” in violation of Title
VII and Texas Labor Code Chapter 21; and (3) negligence or negligence per se. Dkt. 1-5 at 6–7.
The court will discuss each of these in turn.
Retaliation Under Section 1983
Moody claims that “each of the . . . acts and or omissions” alleged in her complaint
“constitutes Retaliation against the Plaintiff and Violations of her First and Fourteenth Amendment
Rights made actionable by 42 U.S.C. Section 1983.” Dkt. 1-5 at 6.
Section 1983 states that “[e]very person who, under color of any [law] . . . of any State . . .
subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party
injured . . . .” 42 U.S.C. § 1983 (2012). Therefore, in order for Moody to successfully raise a claim
under Section 1983, she “must establish that [she was] deprived of a right secured by the
Constitution or laws of the United States, and that the alleged deprivation was committed under color
of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50, 119 S. Ct. 977 (1999). The
consequence of Section 1983’s requirement that the alleged violator be acting “under color of state
law” is that a plaintiff cannot have a cause of action against a private actor unless it can be shown
that the action “may be fairly treated as that of the State itself.” Id. at 50; Jackson v. Metro. Edison
Co., 419 U.S. 345, 351, 95 S. Ct. 449 (1974).
In her complaint, Moody alleges that Chevron is a Texas corporation. Dkt. 1-5 at 3. She
does not claim that Chevron is a state actor, or acting under the color of federal or state law, or taking
actions which can be considered “as that of the State itself.” Dkt. 1-5; Jackson, 419 U.S. at 351.
Moody failed to claim any factual allegations whatsoever that could satisfy the Section 1983
requirement that the action complained of was taken “under color of state law.” Without any details
“showing that the pleader is entitled to relief” under Section 1983, the claim cannot survive a Rule
12(b)(6) motion to dismiss. Fed. R. Civ. P. 12(b)(6). Therefore, Moody’s claims of retaliation under
Section 1983 are DISMISSED.
Discrimination and Retaliation under Title VII and TCHRA
Moody also claims that Chevron’s “acts subjecting [Moody] to unlawful discrimination and
retaliation based on her age, race, national origin, color and ethnicity amounted to violations of
[T]itle VII of the 1964 Civil [R]ights [A]ct as well as violations of [C]hapter 21 of the Texas Labor
Code,” otherwise known as the Texas Commission on Human Rights Act (“TCHRA”). Dkt. 1-5 at
7. “Because one of the purposes of the TCHRA is to ‘provide for the execution of the policies of
Title VII of the Civil Rights Act of 1964,’ [courts] have consistently held that those analogous
federal statutes and the cases interpreting them guide [the courts’] reading of the TCHRA.” Mission
Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633–34 (Tex. 2012) (quoting Tex. Lab. Code
§ 21.001(1)); see Heisohn v. Carabin & Shaw, P.C., 832 F.3d 224, 234–35 (5th Cir. 2016) (adopting
the Texas Supreme Court’s use of Title VII and its relevant caselaw as interpretive guides when
resolving TCHRA issues); see, e.g., Jurach v. Safety Vision, LLC, 642 F. App’x 313, 318 (5th Cir.
2016) (“Texas state courts apply analogous federal statutes and cases when interpreting TCHRA”).
As such, although Title VII does not provide for claims of age discrimination while the TCHRA
does, the court will evaluate together whether discrimination or retaliation in violation of Title VII
or the TCHRA has been sufficiently pled.
Title VII provides that “an unlawful employment practice is established when the
complaining party demonstrates that race, color, religion, sex, or national origin was a motivating
factor for any employment practice, even though other factors also motivated the practice.” 42
U.S.C. § 2000e-2 (2012).
The TCHRA provides substantially the same explanation of
discriminatory employer actions, but also adds age as a motivating factor that will render an
employer’s practice unlawful. Tex. Lab. Code Ann. § 21.051 (West 2012).
To survive a motion to dismiss her Title VII and TCHRA complaints, Moody “need only
allege enough facts to plausibly suggest that her employer discriminated against her due to her
membership in a protected group.” Roberts v. Lubrizol Corp., No. CV 4:12-3272, 2013 WL
12099843, at *5 (S.D. Tex. June 28, 2013) (Gilmore, J.) (emphasis added); see Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937 (2009); Twombly, 550 U.S. at 555. Moody alleges that she suffered
an adverse employment action, namely her compelled retirement, but “she must also plead some
facts to show she suffered that adversity because of her protected status.” Id. at *6.
This Moody did not do. While the complaint conclusorily alleges that Moody “was
wrongfully subjected to work place bullying, racial and age abuse, amongst other discriminatory
acts” and that Moody was “the only African American female in her section,” it nowhere asserts that
the employment action complained of, or any other employment practice by Chevron, was engaged
in because of her race, age, national origin, ethnicity, or color. Dkt. 1-5 at 4. While the court must
accept a plaintiff’s factual allegations as true when considering a defendant’s Rule 12(b)(6) motion
to dismiss, the court cannot supply factual allegations for the plaintiff when the plaintiff’s prove
insufficient. Since Moody has not alleged any facts which would show that Chevron took any illegal
employment actions or engaged in any illegal employment practices, her Title VII and TCHRA
discrimination complaints are DISMISSED.
“‘Title VII prohibits retaliation against employees who engage in protected conduct,’ such
as filing a charge of . . . discrimination.” Stone v. La. Dep’t of Revenue, 590 F. App’x 332, 341 (5th
Cir. 2014) (quoting Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002)). The
analysis for retaliation claims under Title VII and the TCHRA is analogous to that for discrimination
claims, and the same substantive law governs them both. Gorman v. Verizon Wireless Tex., L.L.C.,
753 F.3d 165, 170 (5th Cir. 2014). To successfully allege a claim of retaliation under either statute
for the purposes of surviving a Rule 12(b)(6) motion, Moody “must allege that her employer took
an adverse employment action against her in retaliation for engaging in protected conduct.” Stone,
590 F. App’x at 341. Moody has not alleged any facts showing that she engaged in any “protected
conduct.” Moreover, she did not file her complaints with the EEOC or TWC until after her allegedly
compelled retirement, and therefore her retirement cannot be considered retaliation for complaints
that had not yet been made. Absent any factual allegations that Moody engaged in some kind of
protected conduct for the purposes of Title VII and the TCHRA, Moody’s retaliation claims cannot
survive a Rule 12(b)(6) motion. Therefore, her retaliation claims are DISMISSED.
Hostile Work Environment
Chevron argues in its motion to dismiss that the factual allegations made in Moody’s
complaint are insufficient to support a claim of a hostile work environment. Dkt. 10 at 18.
However, Moody did not include hostile work environment as one of her causes of action. Dkt. 1-5
at 6–7. She did, however, claim in her statement of the facts that she was “subjected to work place
bullying” and that her workplace was “hostile against [sic] her.” Dkt. 1-5 at 4.
The Supreme Court has held that a workplace is sufficiently hostile as to violate Title VII
when it “is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367 (1993) (quoting Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67, 106 S. Ct. 2399 (1986)) (internal citations omitted);
see Reed v. Neopost USA, Inc., 701 F.3d 434, 443 (5th Cir. 2012). However, a single “offensive
utterance” will not suffice to support a hostile workplace claim. Id.; see Long v. Eastfield Coll., 88
F.3d 300, 309 (5th Cir. 1996). In Lee v. Regional Nutrition Assistance, Inc., the plaintiff complained
of “three separate incidents” of derogatory racial remarks. The court held that “the conduct
complained of [did] not rise to the level of severity to state a claim based on a hostile work
environment.” Lee v. Reg’l Nutrition Assistance, Inc., 471 F. App’x 310, 311 (5th Cir. 2012).
In the instant case, Moody claims that a racial epithet was on some occasion used to refer to
her. Dkt. 1-5 at 4. However, she does not claim that this was more than a single, isolated
occurrence, nor does she allege when it occurred or by whom it was spoken. Id. While the use of
such derogatory terms is by no means excused by its infrequence of use, a single occurrence of such
a term does not suffice to constitute a hostile work environment. Aside from the use of this racial
epithet against her, Moody fails to assert any further, nonconclusory, factual basis for her claims of
a hostile work environment. Therefore, any hostile work environment claim she may have raised
cannot survive Chevron’s Rule 12(b)(6) motion and is DISMISSED.
Negligence and Negligence Per Se
Finally, Moody claims that the “acts and/or omissions” which she alleged in the factual
background of her complaint “singularly or in combination with others, constituted negligence or
negligence per se that proximately caused the occurrence made the basis of this action and Plaintiffs’
[sic] injuries and damages.” Dkt. 1-5 at 6. These claims also fail.
Texas courts have generally recognized that employers “have a duty to use ordinary care in
providing a safe work place.” See Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996). However,
the Texas Supreme Court has also found that the comprehensive Labor Code provisions may
supplant other general tort remedies aimed at the same conduct. Waffle House, Inc. v. Williams, 313
S.W.3d 796, 807–08 (Tex. 2010). This is because permitting pursuit of negligence claims for the
same conduct for which TCHRA and Title VII are intended to provide a remedy “would eclipse the
Legislature’s prescribed scheme.” Id. Statutory causes of action therefore abrogate common law
claims if there is a “clear repugnance” between them, and there is a clear repugnance between the
claims if they are “entwined.” Id. That is, there is a clear repugnance between claims that arise out
of the exact same factual allegations. Id; see, e.g., Denson v. BeavEx Inc., No. CIV.A. H-13-1493,
2014 WL 3543718, at *1 (S.D. Tex. July 17, 2014) (Miller, J.), aff'd, 612 F. App’x 754 (5th Cir.
2015); Aguilar v. Asbury Auto. Grp., Inc., No. CV H-16-467, 2016 WL 3387176, at *3 (S.D. Tex.
June 20, 2016) (Miller, J.).
In this case Moody’s Title VII and TCHRA claims preempt her negligence and negligence
per se claims. She has not distinguished between the factual allegations meant to support her Title
VII and TCHRA claims and those meant to support her negligence claims. To allow her to pursue
tort claims that arise out of the same factual allegations upon which her statutory claims are based
would be to permit circumvention of the administrative and statutory remedies the legislature sought
to establish. See Waffle House, 313 S.W.3d at 811–12 (explaining that allowing a negligence cause
of action for a statutorily-covered claim “would negate the Legislature’s carefully balanced and
detailed statutory regime”). For these reasons, Moody’s negligence and negligence per se claims are
Chevron’s motion to dismiss is GRANTED.1 All of Moody’s claims against Chevron are
DISMISSED WITH PREJUDICE.
Signed at Houston, Texas on June 30, 2017.
Gray H. Miller
United States District Judge
Chevron asserts several other grounds for dismissal of Moody’s claims. Dkt. 10. The court
need not address these arguments because Moody fails to state a claim under Rule 12(b)(6).
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