Tyson v. Kirby Inland Marine, LP

Filing 12

MEMORANDUM OPINION AND ORDER granting 5 MOTION to Dismiss (Signed by Judge Kenneth M Hoyt) Parties notified. (jm4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

DAVID TYSON,
Plaintiff,
VS.
KIRBY INLAND MARINE, LP,
Defendant.

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March 06, 2025
Nathan Ochsner, Clerk

CIVIL ACTION NO. 4:24-CV-04813

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION
Pending before the Court is the defendant’s, Kirby Inland Marine, LP (“Kirby”), motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 5). The plaintiff, David
Tyson (“Tyson”), has filed a response to the defendant’s motion (Dkt. No. 6), and the defendant
has filed a reply (Dkt. No. 7). After reviewing the motion, the pleadings, the relevant exhibits, and
the applicable law, the Court determines that the defendant’s motion should be GRANTED.
II.

FACTUAL BACKGROUND
Tyson was employed by Kirby Inland Marine beginning on April 3, 2000. In January 2022,

he sustained a shoulder injury that resulted in a disability requiring medical treatment. Tyson then
took a brief medical leave and returned to work in May 2022. Upon his return, Tyson learned that
during his absence, a coworker had accused him of sexual harassment and claimed that Tyson was
targeting him by nitpicking his work among other things.
Following these accusations, Kirby conducted an internal investigation and concluded that
the co-worker’s claims were false, and that Tyson had not engaged in any misconduct. Despite this
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finding, Kirby took no action against the accuser but reassigned Tyson to another vessel, thereby
permitting the accuser to remain on the original vessel without reprimand. Tyson alleges that this
reassignment was a form of discrimination and retaliation against him.
After his reassignment, Tyson alleges that the same accuser began subjecting him to severe
and pervasive sexual harassment. One such instance occurred when Tyson was in the weight room
in his underwear, and the accuser entered the room and suggestively said, “Here big boy, want me
to lift that weight for you?” Tyson reported this incident to the Operations Manager who allegedly
dismissed Tyson’s concerns and warned him “If I were you, I wouldn’t want anything else added
to your file. Take the move and go with it.” Tyson asserts that this response further demonstrated
Kirby’s discriminatory and retaliatory intent.
On or around May 12, 2023, Kirby received an anonymous complaint from a lightboat
driver alleging that Tyson had operated his vessel too closely to the lightboat, nearly causing a
collision. Kirby reviewed video footage of the incident and determined that the lightboat driver
had failed to follow proper protocol to alert Tyson of his location. However, while reviewing the
footage, Kirby noticed that Tyson briefly picked up his own personal phone. When questioned, he
explained that he was only using his phone to change the podcast he was listening to.
Shortly thereafter, on May 15, 2023, Kirby terminated Tyson’s employment, citing a
violation of the company’s cell phone policy. Tyson contends that this termination was pretextual
and discriminatory, as Kirby had failed to follow its progressive disciplinary policy. He was a
disabled employee who was engaged in protected activity. Hence, he asserts that his termination
was a direct result of discrimination based on his disability, as well as in retaliation for reporting
workplace harassment.

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Based on these events, Tyson filed a claim under the Texas Commission of Human Rights
Act, alleging disability discrimination, retaliation, and that Kirby created a hostile work
environment. He received a 60-day notice of a right to sue in August of 2024 and timely filed his
lawsuit.
III.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) authorizes a motion to dismiss for “failure to state

a claim upon which relief can be granted.” Under the demanding standards of a Rule 12(b)(6)
motion, “[t]he plaintiff’s complaint is to be construed in a light most favorable to the plaintiff, and
the allegations contained therein are to be taken as true.” Oppenheimer v. Prudential Sec., Inc., 94
F.3d 189, 194 (5th Cir. 1996). Dismissal is appropriate only if the “[f]actual allegations [are not]
enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). A court’s review may include the allegations in the complaint and any
documents attached to a defendant’s motion to dismiss, if they are both referred to in the complaint
and central to the claims. Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.
2004).
IV.

ANALYSIS & DISCUSSION
Tyson received his 60-day notice of right to file suit on August 16, 2024. He had until

October 15, 2024, to both file suit and effectuate service on Kirby. TEX. LAB. CODE § 21.254.
While Tyson timely filed his lawsuit on October 15, 2024, he did not serve Kirby until November
15, 2024, one month beyond the statutory deadline for filing and serving the citation. Because
Tyson does not dispute that service was untimely, his claims are time-barred unless he can establish

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that he diligently sought to serve Kirby before and after November 15, 2024. Murray v. San Jacinto
Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990).
Tyson must present evidence that conclusively establishes that he was diligent regarding
his efforts to file and serve his lawsuit. Proulx v. Wells, 235 S.W.3d 213 (Tex. 2007). Once a delay
is established, Tyson must present evidence showing continuous diligence in attempting service.
Id. Here, Tyson offers two explanations: (1) he was waiting for a response from Kirby’s former
counsel about accepting service, and (2) his mother suffered a stroke shortly after he filed the suit.
However, neither explanation conclusively establishes that Tyson was diligent under Texas law.
Tyson argues that he emailed Kirby’s former counsel on October 15, 2024, to inquire
whether he would accept service and, after receiving no response, waited until November 12, 2024,
to follow up. This delay of nearly a month, without additional efforts to serve Kirby, constitutes a
lack of due diligence. Tyson’s October 15, 2024, email explicitly stated that if no response was
received, he would proceed with direct service. Yet, he failed to do so. His failure to initiate service
until nearly a month later supports a finding of a lack of diligence.
Given that Tyson and his counsel failed to timely serve Kirby within the statutory period
required under the Texas Labor Code § 21.254, and has failed to show conclusively he exercised
due diligence under Texas law. Kirby’s motion to dismiss should be GRANTED.
It is so ORDERED.
SIGNED on March 6, 2025, at Houston, Texas.

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Kenneth M. Hoyt
United States District Judge

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