Rebollar v. Ortega Medical Clinic, P.L.L.C. et al

Filing 11

MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
§
v.
§
§
ORTEGA MEDICAL CLINIC, P.L.L.C., §
JUAN ANTONIO ORTEGA-MORA M.D., §
P.A., and JUAN A. ORTEGA, M.D.,
§
Defendant.
§

June 19, 2018
David J. Bradley, Clerk

MERARI REBOLLAR,
Plaintiff,

CASE NO. 4:18-cv-0846

MEMORANDUM AND ORDER
Pending before the Court in this employment discrimination and civil assault
case is Defendants Ortega Medical Clinic PLLC and Juan A. Ortega, M.D.’s
(together, the “Defendants”) Motion to Dismiss Plaintiff Merari Rebollar’s First
Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure (the “Motion”) [Doc. # 8]. Plaintiff filed a timely response, and
Defendants have not replied.1

The Motion is now ripe for decision. Having

considered the parties’ briefing, the applicable legal authorities, and all pertinent
matters of record, the Court concludes that the Motion should be granted in part
and denied in part.

1

See Plaintiff’s Response to Defendants’ Rule 12(b)(6) Motion to Dismiss (the
“Response”) [Doc. # 10]. The deadline for Defendants to file a reply under the
Court’s local procedures has expired. Defendants have not moved to extend the
deadline.

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I.

BACKGROUND
Plaintiff began working for Defendant Ortega Medical Clinic as a medical

assistant in February 2013. Plaintiff alleges that over the next three years she was
subjected to a continuous pattern of sexual harassment by Defendants. The nature
of the incidents constituting the alleged sexual harassment ranged from
inappropriate and non-consensual touching by Defendant Dr. Juan Ortega to lewd
comments and gestures directed towards Plaintiff by Dr. Ortega. In the last such
instance, which is alleged to have occurred on April 30, 2016, Plaintiff asserts that
Dr. Ortega both propositioned her to start a secret romantic relationship with him
and forcibly grabbed her by the head in an attempt to kiss her. Approximately one
week after this incident, on May 6, 2016, Plaintiff resigned from her employment
with Defendants. According to Plaintiff, she left Defendants’ employ as a result of
the severe sexual harassment she had been exposed to throughout her tenure
working for them.

See Plaintiff’s First Amended Complaint (the “Amended

Complaint”) [Doc. # 4], ¶¶ 5.2 – 5.11.
Plaintiff filed suit in this Court on March 16, 2018.

In her Amended

Complaint, Plaintiff asserts claims for sexual harassment under Title VII of the
Civil Rights Act of 1964 (“Title VII”) and for common law assault.2 Defendants

2

Plaintiff alleges that the Court has supplemental jurisdiction over her assault
claims against Defendant pursuant to 28 U.S.C. § 1367 because those claims are
(continued…)

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have moved to partially dismiss the Amended Complaint pursuant to Rule 12(b)(6)
of the Rules of Civil Procedure on the grounds that Plaintiff has failed to state a
claim upon which relief can be granted. Specifically, Defendants argue that any
claims for assault arising from actions that occurred before March 16, 2016, are
time-barred under the applicable statute of limitations, as are any Title VII claims
predicated on events occurring more than 300 days prior to Plaintiff filing a charge
of discrimination with the Equal Employment Opportunity Commission (“EEOC”)
on November 3, 2016.
II.

LEGAL STANDARDS
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure is viewed with disfavor and is rarely granted. Turner v. Pleasant, 663
F.3d 770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co.,
563 F.3d 141, 147 (5th Cir. 2009)). The complaint must be liberally construed in
favor of the plaintiff, and all facts pleaded in the complaint must be taken as true.
Harrington, 563 F.3d at 147. The complaint must, however, contain sufficient
factual allegations, as opposed to legal conclusions, to state a claim for relief that is
“plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Patrick v.
Wal-Mart, Inc., 681 F.3d 614, 617 (5th Cir. 2012). When there are well-pleaded
(continued…)
sufficiently related to her Title VII claims to form part of the same case or
controversy. Amended Complaint [Doc. # 4], ¶ 7.2.

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factual allegations, a court should presume they are true, even if doubtful, and then
determine whether they plausibly give rise to an entitlement to relief. Iqbal, 556
U.S. at 679. Additionally, regardless of how well-pleaded the factual allegations
may be, they must demonstrate that the plaintiff is entitled to relief under a valid
legal theory. See Neitzke v. Williams, 490 U.S. 319, 327 (1989); McCormick v.
Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997).
III.

ANALYSIS
In the Amended Complaint, Plaintiff asserts two causes of action against

Defendants: assault and “gender discrimination, sexual harassment, hostile work
environment, constructive discharge” under Title VII. Defendants have moved to
dismiss both claims, at least in part, on the grounds that the claims are untimely.
The Court addresses these issues regarding Plaintiff’s asserted causes of action in
turn.3
A.

Assault Claim

In her Amended Complaint, which was filed on March 16, 2018, Plaintiff
alleges that she was subjected to numerous instances of misconduct by Defendants
between February 2013 and April 2016. Plaintiff does not specify which instances

3

In Paragraph 1.1 of her Amended Complaint, Plaintiff states that this lawsuit
involves a claim for retaliation under Title VII. However, there are no allegations
in the Amended Complaint pertaining to retaliation. The Court does not construe
the Amended Complaint as asserting a Title VII retaliation claim.

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of misconduct serve as the basis of her assault claim. Defendants argue that to the
extent Plaintiff asserts a claim for assault based on any act that occurred before
March 16, 2016, any such claim is time-barred by the applicable statute of
limitations. The Court concurs.
The statute of limitations for common law assault under Texas law is two
years from the date the cause of action accrues. TEX. CIV. PRAC. & REM. CODE §
16.003(a). Defendants assert, and Plaintiff does not dispute, that Plaintiff’s assault
claims in this case accrued on the date that she allegedly was touched or threatened
because she immediately was aware of the touching or threat. Motion [Doc. # 8], ¶
2 (citing Brothers v. Gilbert, 950 S.W.2d 213, 216 (Tex. App. – Eastland 1997, no
writ)). Indeed, in her Response, Plaintiff does not argue that her assault claim is
based on conduct by any Defendant occurring before March 16, 2016. Plaintiff
argues that Dr. Ortega’s conduct on April 30, 2016, is the sole basis of her assault
claim. Accordingly, the Motion is granted as to any assault claim arising from
conduct that occurred before March 16, 2016, as all such claims are time-barred.
The Motion is denied with respect to any assault claims predicated on acts by any
Defendant after March 16, 2016, two years prior to the date Plaintiff filed suit.
B.

Title VII Claims

Plaintiff also asserts in her Amended Complaint (and reinforced in her
Response) a claim for sexual harassment based on a hostile work environment and

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alleges constructive discharge.4 Defendants argue that any Title VII claims arising
from events occurring before January 7, 2016, are time barred.

Specifically,

Defendants assert that because Plaintiff filed her charge of discrimination with the
EEOC on November 3, 2016, by statute she can only pursue claims for events that
occurred on or after January 7, 2016, 300 days prior to the filing date. 42 U.S.C §
2000e-5(e)(1). Plaintiff responds that although many of her allegations relate to
events that preceded January 7, 2016, those events are part of an ongoing practice
by Defendants of creating a hostile work environment to which she was subjected
throughout the tenure of her employment with them.

According to Plaintiff,

because at least some of the actions that contributed to the hostile work
environment she experienced occurred within 300 days of filing her charge of
discrimination with the EEOC, Supreme Court precedent dictates that all incidents
supporting her hostile work environment claim, including those occurring before
January 7, 2016, are properly before the Court when assessing that claim.
Plaintiff’s argument has merit.
A fair reading of Plaintiff’s Amended Complaint reveals that she is asserting
a claim for sexual harassment based on a continuous and related series of incidents

4

Plaintiff includes in the title of her single claim a reference to gender
discrimination but does not articulate any facts to support a theory other than
sexual harassment and constructive discharge.

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that occurred between 2013 and April 2016. The last event in that series allegedly
occurred on April 30, 2016, which indisputably is within 300 days of the date of
Plaintiff’s charge of discrimination. In National Railroad Passenger Corporation
v. Morgan, 536 U.S. 101 (2002), the Supreme Court held that under such
circumstances, all events comprising a Plaintiff’s hostile work environment claim,
even those that predate the 300 day statutory period, can be considered by the
court. Morgan, 536 U.S at 117; see also Heath v. Bd. of Supervisors for the S.
Univ. & Agric. & Mech. College, 850 F.3d 731, 737 (5th Cir. 2017). Accordingly,
Defendants’ Motion is denied regarding Plaintiff’s hostile work environment claim
for sexual harassment.
IV.

CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Defendant’s Motion to Dismiss Pursuant to Federal Rules

of Civil Procedure 12(b)(6) [Doc. # 8] is GRANTED in part.

Specifically,

Plaintiff’s assault claims based on events that occurred before March 16, 2016, are
DISMISSED WITH PREJUDICE as time-barred. In all other respects, the
Motion is DENIED.
SIGNED at Houston, Texas, this 19th day of June, 2018.

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NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE