Wellington v. Texas Guaranteed et al

Filing 29

ORDER GRANTING 28 Motion for Judgment on the Pleadings. FINALLY ORDERED that Plaintiff Joann Wellington's claims against Defendants Texas Guarantee, Sheila Dunlap, Courtney Robertson, Samantha Haynes, and Joyce Coleman are DISMISSED WITH PREJUDICE. Signed by Judge Sam Sparks. (td)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2114
(

MAY 20

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AM

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TEXAS

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JOANN WELLINGTON,

Plaintiff,
Case No. A-13-CA-077-SS
TEXAS GUARANTEED, SHEILA DUNLAP,
COURTNEY ROBERTSON, SAMANTHA
HAYNES, JOYCE COLEMAN,
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Defendants' Motion for Judgment on the Pleadings [#28], to which Plaintiff Joann
Wellington has not responded. Having considered the documents, the file as a whole, and the
governing law, the Court enters the following opinion and orders

Background
Plaintiff Joann Wellington filed this pro se lawsuit against a number of her former coworkers, her former supervisor, and her former employer, asserting claims under Title VII of the
Civil Rights Act and the Americans with Disabilities Act (ADA). Wellington used to work for

Defendant Texas Guaranteed Student Loan Corporation (TG), which is a non-profit corporation that
offers resources to help students and families plan and prepare for college, repay their student federal

loans, and administer Federal Family Education Loan Program loans on behalf of the U.S.

Department of Education. According to TG, Wellington worked for the corporation from November
2003 until July 9, 2012, when TG terminated her employment.

On November 16, 2012, Wellington filed a Charge of Discrimination against TG with the

Texas Work Force Commission Civil Rights Division and the Equal Employment Opportunity

Commission (EEOC), claiming she was subject to a continuous hostile work environment from
around July 1, 2012, until July 9, 2012. Wellington alleged the "main participants/instigators in the

harassment [were]: Sheila Dunlap (Black) Assistant Vice President, Samantha Haynes (Black) Team
Leader, Joyce Coleman, Carolyn Daniels, Courtney Robertson, Tracy Morgan, Tsinina Barbados,

Ileana Santana, and Leslie Rodriguez." Defs.' Mot. J. Pleadings [#28-1], Ex. A (EEOC Charge).
Wellington asserts these individuals made her "job and work environment difficult on a daily basis

simply because [she] refused to be one of the girls and because [she] was selected for the Contract
Support Rep position." Id. Wellington claims Haynes targeted her specifically because she refused
to be on Haynes's "team," and Haynes allowed her team "to shout verbal abusive language;

derogatory comments about [Wellington's] perfume and [Wellington] had personal items removed
from her desk." Id. Wellington alleges she filed a complaint in April of 2012 with Greg Dickerson
from the legal department, and Dickerson conducted an investigation. Id. Apparently, Dickerson

found "no proof' to Wellington's claims, and Dickerson told Wellington to keep him informed. Id.
Finally, Wellington states Dickerson told her that her job would not be in jeopardy. Id.

Based on these factual allegations, Wellington checked the boxes on her EEOC charge for

discrimination based on race, color, disability, and retaliation. Id. She did not identify her race,
color, or disability. Id. The EEOC issued a "Dismissal and Notice of Rights" with respect to

Wellington's claims on November21, 2012.

See Defs.'

Mot. J. Pleadings [#28-2], Ex. B (Dismissal

and Notice of Rights). The EEOC concluded that based on its investigation: (1) the alleged facts in

the charge failed to state a claim under any of the statutes enforced by the EEOC; (2) the allegations
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did not involve a disability as defined by the ADA; and (3) the EEOC was unable to conclude that

the information obtained established violations of Title VII or the ADA. Id.

On January 29,2013, Wellington filed her pro se Original Complaint with this Court, naming
TG and four TG employees as defendants. On August 20, 2013, she filed an Amended Complaint

after retaining counsel.1 In short, Wellington claims: (1) she was discriminated against because she
is black in violation of Title VII; (2) she was discriminated against because she is obese in violation

of the ADA; and (3) she was retaliated against in violation of Title VII and the ADA because she
complained to the legal department about the race and disability discrimination, and was fired soon
thereafter.

On April 15,2014, Defendants, who have all answered and asserted as an affirmative defense
that the Amended Complaint fails to state a claim upon which relief can be granted, now bring a

Motion for Judgment on the Pleadings. Wellington has yet to respond to this motion, and the Court
also notes the deadline for filing amended pleadings was April 30, 2014.

See

Scheduling Order

[#20]. The Court now addresses Defendants' motion.

Analysis
As an initial matter, the Court grants Defendants' motion as unopposed.

See

Local Rule CV-

7(e)(2). Nevertheless, the Court addresses the merits of the motion.

I.

Rule 12(c)Legal Standard
Under Federal Rule of Civil Procedure 12(c), "[a] fter the pleadings are closedbut early

enough not to delay triala party may move for judgment on the pleadings."

FED.

R. Civ. P. 12(c).

1Wellington's counsel has since withdrawn from the case, and she is proceeding pro se once again.

of Mar. 13, 2014 [#26].

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See

Order

"A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard as a
motion to dismiss under Rule 12(b)(6)." Ackerson v. Bean DredgingLLC, 589 F.3d 196, 209 (Sthc
Cir. 2009).

A motion under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss a complaint
for "failure to state a claim upon which relief can be granted."

FED. R. CIV. P.

1

2(b)(6). In deciding

a motion to dismiss under 1 2(b)(6), a court generally accepts as true all factual allegations contained

within the complaint. Leatherman

v.

Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507

U.s. 163, 164 (1993). However, a court is not bound to accept legal conclusions couched as factual
allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Although all reasonable inferences will

be resolved in favor of the plaintiff, the plaintiff must plead "specific facts, not mere conclusory

allegations." Tuchman v. DSC Commc 'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). The plaintiff
must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft v. Iqbal, 556

U.s. 662, 678 (2009); Bell Ati. Corp.

v.

Twombly, 550 U.S. 544, 570 (2007). "A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Although
a plaintiff's factual allegations need not establish the defendant is probably liable, they must establish

more than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining plausibility
is a "context-specific task," that must be performed in light of a court's "judicial experience and

common sense." Id. at 679. In deciding a motion to dismiss, courts may consider the complaint,
as well as other sources courts ordinarily examine when ruling on Rule 1 2(b)(6) motions to dismiss,

such as documents incorporated into the complaint by reference, and matters of which a court may
take judicial notice. Tellabs, Inc.

v.

Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

When deciding a motion to dismiss, the Court may only consider matters included in the
pleadings. In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). These
matters include documents attached to the complaint, as well as documents "attached to [the] motion
to dismiss,

. . .

referred to in the complaints, and.

. .

central to the plaintiffs' claims." Id. (citing

Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285,288 (5th Cir. 2004)). In addition, the Court

may take judicial notice of public records. See Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir.
1994); see also Prewitt v. ContinentalAutomotive, 927 F. Supp. 2d 435, 447 (W.D. Tex. 2013) (in

deciding motion to dismiss, "a court may take judicial notice of EEOC documents as a matter of

public record").
In this case, Wellington references her EEOC Charge and the Dismissal and Notice of Rights
in her Amended Complaint. See Am. Compl. [#19], ¶ 11-12. Wellington attached the Notice and

Dismissal of Rights to her Original Complaint, and Defendants attached both of these documents
to their Motion for Judgment on the Pleadings. Both documents are central to Wellington's claims

because she can only assert claims that were properly exhausted in the EEOC Charge, and she must

be issued the Notice of Dismissal of Rights before she can file her Title VII and ADA claims in
federal court. Accordingly, the Court may consider these documents in deciding the instant motion.

II.

Application

A.

Wellington's Claims against the Individual Defendants
Wellington sues Sheila Dunlap, Samantha Haynes, Courtney Robertson, and Joyce Coleman.

All four were allegedly her co-workers, and Dunlap was her direct supervisor. Wellington asserts

both Title VII and ADA claims against these Defendants. These statutes, however, only create

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causes of action against an "employer," and none ofthese individuals were Wellington's "employer."

Consequently, the claims must be dismissed.
Title VII makes it unlawful for an "employer" 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). In order for a

defendant to be subject to liability under Title VII, there must be an employment relationship
between the plaintiff and the defendant. See Deal v. State Farm Cnty. Mut. Ins. Co., 5 F.3d 117, 118
n.2 (5th Cir. 1993) (citing Fields

v.

Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019 (5th Cir.

1990)). The statute defines "employer" as "a person engaged in an industry affecting commerce who

has fifteen or more employees. . ., and any agent of such person." 42 U.S.C. § 2000e(b). Similarly,
the ADA prohibits a "covered entity" from "discriminat{ing] against a qualified individual on the

basis of disability." 42 U.S.C.

§

12112(a). A "covered entity" is an "employer," and the definition

of "employer" is the same under Title VII and the ADA. See 42 U.S.C. § 12111(2), 1211 1(5)(A).
The Fifth Circuit has repeatedly held Title VII creates a cause of action against an employer
and caimot be used to impose liability on an employee or a supervisor in his individual capacity. See

Provensalv. Gaspard, 524 F. App'x 974, 977 (5th Cir. 2013) (unpublished) (affirming dismissal of

plaintiff's claims against another employee because the defendant "could not be sued in his
individual capacity under Title VII") (citing Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994)
(holding that plaintiff could not bring a Title VII claim against his supervisor, even though that
supervisor had "authority to hire, fire, and discipline" the plaintiff, because the statute "does not

permit the imposition of liability upon individuals")).

In addition, a plaintiff cannot assert a Title VII claim against both her employer and an

employee or supervisor in his official capacity because this could result in the employer being held

liable for the same conduct twice. See Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th
Cir. 1999) (citing Sims v. Jefferson Downs RacingAss 'ii, Inc., 778 F.2d 1068, 1081(5th Cir. 1985)).

Wellington's Title VII claims against the four individual defendantswhich are essentially identical
to her claims against TOmust therefore be dismissed for failure to state a claim upon which relief

can be granted. See, e.g., Evans v. Greuschow, 314 F. App'x 716, 718 (5th Cir. 2009) (affirming

district court's dismissal of plaintiff's Title VII claims against his supervisor under Rule 12(b)(6)
because the statute cannot be used to impose individual liability); Muthukumar v. Kiel, 478 F. App'x
156, 158 (5th Cir. 2012) (unpublished) (same); Umoren v. Piano Indep. Sch. Dist., 457 F. App'x

422, 425 (5th Cir. 2012) (unpublished) ("[R]elief under Title VII is only available against an

employer, not an individual supervisor or fellow employee.") (quoting Foley v. Univ.

ofHouston

Sys., 355 F.3d 333, 340 n.8 (5th Cir. 2003)).

Wellington's ADA claims against the individual defendants must be dismissed for the same
reasons as her Title VII claims because the ADA definition of "employer" is identical to Title VII's.

While the Fifth Circuit has not expressly addressed whether the ADA can be used to impose
individual liability on an employee or supervisor, district courts in this Circuit as well as other circuit
courts have consistently concluded an employee or supervisor cannot be held individually liable

under the ADA due to the ADA's similarities to Title VII. See, e.g., Fodor

App'x 965, 966 (11th Cir. 2013) (unpublished) (discussing Aibra

829-30(llthCir. 2007)); US. E.E.O.C.

v.

v.

v.

D 'Isernia, 506 F.

Advan, Inc., 490 F.3d 826,

AIC Sec. Investigations, 55 F.3d 1276, 1280, 1282 (7th

Cir. 1995) (noting "[c]ourts routinely apply arguments regarding individual liability to [the two]

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statutes interchangeably"); Franklin v. City of Slidell, 936 F. Supp. 2d 691,703-04 (E.D. La. 2013);
Lopez v. Kempthorne, 684 F. Supp. 2d 827, 850 (S.D. Tex. 2010) (citing Jenkins

v.

Bd. ofEduc.

of

Hous. Indep. Sch. Dist., 937 F. Supp. 608, 6 12-13 (S.D. Tex. 1996); Miller v. Giglio Distrib. Co.,
899 F. Supp. 318,319 (E.D. Tex. 1995)); Rodriguez v. Corvel Corp., No. SA-99-CA- 1339 HG, 2001

WL 685734, at *5 (W.D. Tex. Mar. 29, 2001).
Therefore, the Court GRANTS Defendants' motion with respect to Wellington's claims
against the individual Defendants.
B.

Wellington's Claims against TG
1.

Race and Disability Discrimination Claims

Before an individual can pursue a Title VII claim in federal court, she must first exhaust her

available administrative remedies. See Taylor v. Books a Million, inc., 296 F.3d 376, 378-79 (5th
Cir. 2002). Exhaustion occurs when an individual files a timely complaint with the EEOC, her claim
is dismissed by that agency, and the agency informs her of her right to sue in federal court. 42

U.S.C.

§

2000e-5(f)(1). The scope of the exhaustion requirement has been defined with two

competing Title VII policies in mind. "On the one hand, because 'the provisions of Title VII were
not designed for the sophisticated,' and because most complaints are initiated pro se, the scope of
an EEOC complaint should be construed liberally." Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir.
2006) (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463 (5th Cir. 1970)). At the same

time, "a primary purpose of Title VII is to trigger the investigatory and conciliatory procedures of
the EEOC, in attempt to achieve non-judicial resolution of employment discrimination claims." id.

(citing Sanchez, 431 F.2d at 466). Balancing these policies, courts "interpret[] what is properly
embraced in review of a TitleVIl claim somewhat broadly, not solely by the scope of the

administrative charge itself, but by the scope of the EEOC investigation which 'can reasonably be

expected to grow out of the charge of discrimination." Id. (quoting Sanchez, 431 F.2d at 466).
The exhaustion requirement and exhaustion analysis of Pacheco have been similarly applied

in the ADA context. See, e.g., Hamar

v.

Ashland, Inc., 211 F. App'x 309, 310 (5th Cir. 2006)

(unpublished) (holding an EEOC charge that only presents allegations in support of a disparate

treatment claim does not exhaust the plaintiff's administrative remedies for a failure-toaccommodate claim since those claims are based on different conduct); Prewitt, 927 F. Supp. 2d at

450-52; Huffv. DRE Mgmt., Inc., No. 3: 12-CV-0414-B, 2012 WL 3072389, at *3_5 (N.D. Tex. July
30, 2012).

'While Wellington checked the boxes for race, color, retaliation, and disability on her EEOC

Charge, none of the facts alleged in her narrative relate to these forms of discrimination. Wellington
claims she was mistreated and subject to a hostile, discriminatory work environment for the

following reasons: (1) Wellington "refused to be one of the girls;" (2) Wellington was selected for
a promotion; (3) Wellington refused to be on Defendant Haynes "team;" (4) Wellington's co-workers

shouted abusive language at her; (5) Wellington's co-workers made derogatory comments about her

perfume; and (6) Wellington's co-workers removed personal items from her desk. Wellington fails
to connect these alleged events to any sort of race or disability discrimination. In fact, she does not

even identify her race or her disability.
In her Amended Complaint, Wellington explains she was targeted because she was African-

American and obese. An investigation based on the EEOC Charge, however, could not reasonably
be expected to include an investigation into discrimination based on these traits, even when liberally
construed. The only mention of race in the narrative of the EEOC Charge is the allegation two of

the individuals who were harassing Wellington were black, and there is no mention or even implied

reference to Wellington's supposedly obese condition. Instead of describing race or disability

discrimination, Wellington describes harassment based on non-discriminatory motives unrelated to

being black or obese.
Furthermore, the specific allegations of race discrimination raised by Wellington in her

Amended Complaint are totally absent from her EEOC Charge. Beyond generally alleging race
discrimination against all of the Defendants, Wellington describes the following specific instances

of race-based harassment: (1) Haynes told Wellington at a pot luck lunch she was "too fat and black"
to eat with the other employees; (2) Haynes told Wellington she could be as dark as Wellington if

she tanned more often; and (3) Dunlap allowed other employees on her work team to refer to

Wellington as a "fat ass nigga bitch."

See

Am. Compl. [#19], ¶J 19, 24. Nothing in the EEOC

Charge would alert an investigator to these events. In fact, Wellington claims in her charge she was
first discriminated against in July 2010, but the pot luck lunch where Haynes supposedly made her

racial comment occurred allegedly in the summer of 2008.
Similarly, Wellington's allegations of discrimination motivated by her obesity in her

Amended Complaint are totally unrelated to the claims in her EEOC Charge. In her Amended

Complaint, Wellington describes the following specific instances of harassment related to her
weight: (1) Haynes told Wellington at the pot luck lunch she was "too fat and black" to eat with

other employees; (2) Haynes told Wellington at the pot luck lunch she had "too much food on her

plate" and she should eat less so she could lose weight; (3) Haynes and another employee were
passing out snacks to all the other employees at TG, but when they realized they did not have enough
snacks for everyone, they took Wellington's snacks away from her stating she "did not need any
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more snacks because of her weight;" (4) Dunlap allowed other employees on her work team to refer
to Wellington as a "fat ass nigga bitch." Id., ¶J 19-20, 24. Again, there is not even a hint of these

allegations in the EEOC Charge, and the pot luck lunch comments predate the time frame of

discrimination alleged in the Charge.
Comparing Wellington's allegations in her EEOC Charge and those in her Amended

Complaint, the Court concludes the scope of her EEOC Charge, including any investigation which
could reasonably have been expected to grow out of the allegations in her Charge, does not

encompass the allegations in her Amended Complaint. In effect, she did not trigger the investigatory
and conciliatory procedures of the EEOC, which would have helped achieve non-judicial resolution

of the employment discrimination claims. Because Wellington has failed to exhaust her
administrative remedies, her claims of race discrimination under Title VII and disability

discrimination under the ADA against TG must be dismissed.
2.

Retaliation Claims

Under Title VII, retaliation occurs when a plaintiff engages in protected activity, such as
reporting discrimination or perceived discrimination that violates the statute and suffers a causally

related adverse employment consequence.

Ackel

v.

Nat '1 Commc 'ns, 339 F.3d 376, 385 (5th Cir.

2003). Just as with her race and disability discrimination claims, Wellington's allegations in her

EEOC Charge do not match those in her Amended Complaint. In her EEOC Charge, after describing
the various forms of harassment motivated by non-discriminatory motives, she claims she took her

complaints to Greg Dickerson with TG's legal department in April 2012. Dickerson concluded there
was no proof to her claims, told Wellington to keep him advised, and assured her job was not in

jeopardy. In contrast, in her Amended Complaint, after describing various forms of discrimination
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motivated by her race and her obesity, Wellington alleges she discussed her concerns with her
manager, the Human Resources department, and the legal department.

See Am.

Compi. [#19], ¶ 41.

According to Wellington, soon after voicing these concerns, she was terminated. Id.

Wellington's allegations in her EEOC Charge would not put an investigator on notice of the
retaliation claim she asserts in her Amended Complaint. The discrimination she describes in her
EEOC Charge is not the sort covered by Title VII or the ADA. Therefore, under these allegations,

when she states she complained to Dickerson in the legal department, she was not engaged in a

"protected activity" for purposes of Title VII and ADA retaliation claims. Moreover, Wellington
does not even mention in her EEOC Charge, which was signed on November 16, 2012, that TG

terminated her employment in July 2012, which would alert an EEOC investigator to the fact
Wellington suffered an "adverse employment consequence" for purposes of her Title VII and ADA

retaliation claims.
Because Wellington has failed to exhaust her administrative remedies, her retaliation claims
against TG must be dismissed.

Conclusion
Wellington has failed to state a claim against the individual Defendants because none ofthem
were her "employer" for purposes ofTitle VII and the ADA. Furthermore, Wellington has not stated
a claim against her employer, Texas Guaranteed, because she failed to exhaust her administrative

remedies. Wellington originally filed this lawsuit in January 2013 and filed an amended complaint
in August 2013. The deadline for filing amended pleadingsApril 30,

2014has passed,

and

Wellington has failed to even respond to the instant motion, which was filed April 15,2014. Finally,
the Court fails to see how Wellington could remedy the deficiencies in her pleadings by re-filing
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given the individuals' statuses as non-employers and the failure to exhaust her remedies against her

employer. Therefore, the Court GRANTS the Defendants' Motion for Judgment on the Pleadings,
and DISMISSES WITH PREJUDICE Wellington's claims against all Defendants.

Accordingly,
IT IS ORDERED that Defendants' Motion for Judgment on the Pleadings [#28] is

GRANTED;
IT IS FINALLY ORDERED that Plaintiff Joann Wellington's claims against

Defendants Texas Guarantee, Sheila Dunlap, Courtney Robertson, Samantha Haynes, and
Joyce Coleman are DISMISSED WITH PREJUDICE.
SIGNED this the

Oday of May 2014.

UNITED STATES DISTRICT JUDGE

077 motjudg on plead ordjtw.frm

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