Hernandez Garcia et al v. Key Energy Services, LLC et al
ORDER GRANTING 8 Partial Motion to Dismiss. Signed by Judge Robert Pitman. (td)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
VERONICA HERNANDEZ GARCIA,
CEDRIC RAY, MICHAEL TREVINO,
and HUMBERTO J. ZINGG MACHADO,
KEY ENERGY SERVICES, LLC and
Before the Court are Defendants’ Partial Motion to Dismiss, filed on February 24, 2015
(Clerk’s Dkt. #8), Plaintiffs’ Memorandum in Response to Defendants’ Motion to Dismiss for Failure
to State a Claim, filed March 20, 2015 (Clerk’s Dkt. #11), and Defendants’ Reply to Plaintiffs’
Response to Defendants’ Partial Motion to Dismiss, filed on March 27, 2015 (Clerk’s Dkt. #12).
Having reviewed the parties’ pleadings, the entire case file and the applicable case law, this Court
issues the following Order.
Plaintiffs, former employees of Key Energy Services, LLC (“Key Energy”), bring this lawsuit
for employment discrimination and civil rights violations pursuant to the Fourteenth Amendment to
the United States Constitution and 42 U.S.C. §§ 1981, 1981a, 1983, 1985, 1988, 2000e-2, 2000e-3
and 2000e-5, as well as Sections 21.051 and 21.055 of the Texas Labor Code. Each Plaintiff
alleges he or she was subjected to a hostile work environment and discrimination based on race,
gender and/or national origin, as well as retaliatory termination.
Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) all of
Plaintiffs’ claims under the Fourteenth Amendment, 42 U.S.C. §§ 1983 and 1985 and certain of
Plaintiffs’ claims under 42 U.S.C. § 1981 for failure to state a claim upon which relief can be
STANDARD OF REVIEW
When evaluating a motion to dismiss under Rule 12(b)(6) the complaint must be liberally
construed in favor of the plaintiff and all facts pleaded therein must be taken as true. Leatherman
v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Although Federal Rule of Civil Procedure 8 mandates
only that a pleading contain a “short and plain statement of the claim showing that the pleader is
entitled to relief,” this standard demands more than unadorned accusations, “labels and
conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]”
devoid of “further factual enhancement.” Bell Atlantic v. Twombly, 550 U.S. 544, 555-57 (2007).
Rather, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” Id., 550 U.S. at 570. The Supreme Court has made clear this
plausibility standard is not simply a “probability requirement,” but imposes a standard higher than
“a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The standard is properly guided by "[t]wo working principles." Id. First, although "a court
must accept as true all of the allegations contained in a complaint," that "tenet" "is inapplicable to
legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice." Id., 556 U.S. at 678-79. Second, "[d]etermining
whether a complaint states a plausible claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense." Id., 556 U.S.
at 679. Thus, in considering a motion to dismiss the court must initially identify pleadings that are
no more than legal conclusions not entitled to the assumption of truth, then assume the veracity
of well-pleaded factual allegations and determine whether those allegations plausibly give rise to
an entitlement to relief. If not, “the complaint has alleged-but it has not ‘show[n]’–‘that the pleader
is entitled to relief.’” Id. (quoting FED. R. CIV. P. 8(a)(2)).
The Fourteenth Amendment
Plaintiffs allege Defendants violated their equal protection rights under the Fourteenth
Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
The Fourteenth Amendment provides:
No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without the due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
The Fourteenth Amendment protects citizens against actions by the state, not against
wrongs done by private individuals. U.S. v. Price, 383 U.S. 787, 799 (1966). It “erects no shield
against merely private conduct, however discriminatory or wrongful.” Barrera v. Security Bldg. &
Inv. Corp., 519 F.2d 1166, 1169 (5th Cir. 1975)(quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1946)).
In their Memorandum in Response to Defendant’s Partial Motion to Dismiss, Plaintiffs
concede Defendants are not state actors. Plaintiffs do not allege in their pleadings Defendants
were otherwise acting under color of law or participating in a joint action with the State or its agents.
The protections of the Fourteenth Amendment do not apply to Defendants’ private conduct.1
42 U.S.C. § 1981
Plaintiffs claim they were subjected to discrimination and a hostile work environment based
on race, national origin and sex in violation of 42 U.S.C. § 1981. Defendants move to dismiss
Plaintiffs’ claims under § 1981 based on national origin and sex.
Section 1981 states:
Although Plaintiffs’ complaint asserts a claim under the Fourteenth Amendment, the Constitution does not
itself provide a direct cause of action. See Solesbee v. Nation, 2008 WL 244343 (N.D. Tex. January 29, 2008).
(a) Statement of Equal Rights. All persons within the jurisdiction of the United
States shall have the same right in every State and territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal benefit of all
laws and proceedings for the security of persons and property as is enjoyed by
white citizens, and shall be subject to like punishment, pains, penalties, taxes,
licenses and exactions of every kind, and to no other.
(b) “Make and enforce contracts” defined. For purposes of this section, the term
“make and enforce contracts” includes the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.
(c) Protection against Impairment. The rights protected by this section are
protected against impairment by nongovernmental discrimination and impairment
under color of State law.
This statute “affords a federal remedy against discrimination in private employment on the
basis of race.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460 (1975). It does not
protect against discrimination based solely on the basis of place or nation of origin. St. Francis
College v. Al-Khazraji, 481 U.S. 604, 613 (1987).
Nor does § 1981 protect against sex
discrimination. Bobo v. ITT, Continental Baking Co., 662 F.2d 340, 345 (5th Cir. 1981).
Even assuming as true all of the facts Plaintiffs allege, Plaintiffs cannot state a claim for
which relief can be granted under § 1981 for national origin or sex discrimination. The only § 1981
claims asserted by Plaintiffs that withstand a Rule 12(b)(6) challenge are those based on racial
discrimination. Accordingly, this Court finds that Plaintiffs’ § 1981 claims based on national origin
and gender should be dismissed.
42 U.S.C. § 1983
Plaintiffs allege Defendants violated 42 U.S.C. § 1983. Section 1983 provides that any
person acting under color of law who deprives an individual of rights, privileges or immunities
guaranteed by the U.S. Constitution is liable to the injured party. 42 U.S.C. § 1983. To state a
cause of action under section 1983, the plaintiff must allege the person who caused the deprivation
of a federal right was acting under color of law. Cinel v. Connick, 15 F.3d 1338, 1342 (5th Cir.
1994). A private citizen is amenable to suit under section 1983 only if he or she was “a willful
participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27, 101 S.
Ct. 183, 186 (1980). The plaintiff must allege: (1) an agreement between the private and public
defendants to commit an illegal act and (2) a deprivation of constitutional rights. Cinel, 15 F.3d at
As discussed above, Plaintiffs concede Defendants are not state actors and do not allege
Defendants were otherwise acting under color of law or participating in a joint action with the State
or its agents. Absent such an allegation, the provisions of § 1983 do not apply. Accordingly,
Plaintiffs claims thereunder should be dismissed for failure to state a claim upon which relief can
42 U.S.C. § 1985
Plaintiffs assert claims under 42 U.S.C. § 1985 alleging Defendants engaged in a
conspiracy to deprive them of their civil rights.
Section 1985 provides that if two or more persons conspire for the purpose of depriving any
person of the equal protection of the laws, or of equal privileges and immunities thereunder, the
party injured or deprived may have an action for recovery of damages against the conspirators.
42 U.S.C. § 1985.
It is Plaintiffs’ contention that Key Energy and Defendant Kovar “conspired with other Key
supervisors and dispatchers to make Plaintffs’ work lives miserable” and to deprive Plaintiffs of their
constitutional rights. However, a “corporation cannot conspire with itself any more than a private
individual can, and it is the general rule that acts of the agent are the acts of the corporation.”
Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994)(quoting Nelson Radio & Supply Co. v.
Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952). If the alleged conspirators are all part of the
same corporation, there does not exist a conspiracy of two or more people. See Id.
Plaintiffs do not allege Key Energy conspired with anyone other than its employees and
agents. Since Key Energy cannot conspire with itself, this does not constitute a conspiracy of two
or more people as required by § 1985.
Accordingly, Plaintiffs’ claims against Defendants
thereunder should be dismissed for failure to state a claim upon which relief can be granted.
In light of the foregoing, IT IS THEREFORE ORDERED that Defendants’ Partial Motion to
Dismiss (Clerk’s Dkt. #8) is hereby GRANTED and Plaintiffs’ claims under 42 U.S.C. § 1983 and
§ 1985 are hereby DISMISSED in their entirety.
IT IS FURTHER ORDERED that the claims asserted by Plaintiffs Veronica Hernandez
Garcia, Michael Treviño and Humberto J. Zingg Machado under 42 U.S.C. § 1981 on the basis of
national origin are hereby DISMISSED.
IT IS FINALLY ORDERED that the claim asserted by Plaintiff Veronica Hernandez Garcia
under 42 U.S.C. § 1981 on the basis of sex discrimination is hereby DISMISSED.
SIGNED on April 21, 2015.
ROBERT L. PITMAN
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?