Razien v. Micro Focus (US), Inc. et al
REPORT AND RECOMMENDATIONS re 13 Motion to Dismiss for Failure to State a Claim filed by Micro Focus (US), Inc., 16 Motion to Dismiss filed by Hewlett Packard Enterprise Company. Signed by Judge Andrew W. Austin. (td)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
MICRO FOCUS INT’L PLC, et al.
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are Defendant Micro Focus (US), Inc.’s Rule 12(b)(6) Motion to Dismiss
for Failure to State a Claim (Dkt. No. 13); Razien’s Response (Dkt. No. 14); and the Reply (Dkt. No.
18); Defendant Hewlett Packard Enterprise Company’s Motion to Dismiss (Dkt. No. 16); Plaintiff’s
Response (Dkt. No. 19); and the Reply (Dkt. No. 21). The District Court referred these Motions to
the undersigned for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule
of Civil Procedure 72 and Rule 1(d) of Appendix C of the Local Rules.
I. FACTUAL BACKGROUND
This is an employment discrimination case brought pursuant to the Americans with
Disabilities Act, Section 504 of the Rehabilitation Act, the Texas Labor Code, and Texas statutory
and common law. Jason Razien alleges that he is disabled within the meaning of the pertinent
statutes and that his former wife Emily Kate Samuel is also disabled. The following facts are taken
from Razien’s Second Amended Complaint (Dkt. No. 12). Razien was employed by Micro Focus’s
predecessor Attachmate from June 2000 to May 2010. He left for another opportunity, but returned
to employment at Attachmate in 2015. At this time, Razien alleges he provided Attachment with all
relevant medical history regarding his disability and that of his wife. Soon after Razien started at
Attachmate, Micro Focus acquired Attachmate. Micro Focus conducted a reduction in force (RIF)
resulting in the layoffs of about 500 employees. Razien alleges Micro Focus conducted the layoffs
in an effort to make it more attractive for acquisition by Hewlett Packard Enterprise Company. The
employees subject to the RIF by Micro Focus received severance packages. Razien alleges he was
party to a conference call discussing the RIF, where he, and others on the call, were assured they
would not be terminated. On May 30, 2015, Razien was terminated by Micro Focus for poor work
performance. He alleges that, in fact, he was terminated because of his wife’s high medical bills,
which were covered in part by Micro Focus. Razien alleges that because Hewlett Packard required
Micro Focus to cut costs before HP would acquire Micro Focus, HP acted in concert with Micro
Focus in the termination.
Razien filed a Charge of Discrimination with the EEOC on July 12, 2016, alleging the last
date discrimination occurred was June 30, 2015. Dkt. No. 12-3. In that charge, he asserted that he
was terminated by Micro Focus because he served as his disabled wife’s caregiver. Razien received
his Right to Sue letter, which found his charge was not timely filed, via a mailing on August 8, 2016.
He filed this suit on November 6, 2016.
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for
failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). In deciding a Rule
12(b)(6) motion to dismiss for failure to state a claim, “[t]he court accepts all well-pleaded facts as
true, viewing them in the light most favorable to the [nonmovant].” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted), cert. denied, 552 U.S.
1182 (2008). To survive the motion, a nonmovant must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The court’s
task is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not
to evaluate the plaintiff's likelihood of success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank
PLC, 594 F.3d 383, 387 (5th Cir. 2010). “A claim has facial plausibility when the [nonmovant]
pleads factual content that allows the court to draw the reasonable inference that the [movant] is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Id. Under Rule 8(a)(2), plaintiffs are not required to include
factual allegations,” but
“more than an unadorned,
the-defendant-unlawfully-harmed-me accusation is needed.” Twombly, 550 U.S. at 555 (citations
and internal punctuation omitted). . The court generally is not to look beyond the pleadings in
deciding a motion to dismiss. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). “Pleadings”
for purposes of a Rule 12(b)(6) motion include the complaint, its attachments, and documents that
are referred to in the complaint and central to the plaintiff’s claims. Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498-99 (5th Cir. 2000).
Timeliness of Claims Against Micro Focus
In a deferral state such as Texas, an aggrieved party must file a charge of discrimination with
the EEOC within 300 days after the alleged unlawful practice occurred. 42 U.S.C. § 2000e-5(e); see
also Mennor v. Fort Hood Nat'l Bank, 829 F.2d 553, 554-55 (5th Cir. 1987). Razien filed his Charge
of Discrimination on July 12, 2016, alleging he was terminated on June 30, 2015. Therefore, since
Razien filed his charge 409 days after his termination, his charge was filed outside the applicable
Razien asserts that, although he filed outside the applicable deadline, the Court should
equitably toll the statute of limitations because Micro Focus intentionally concealed facts from
Razien and induced him not to act within the limitations period, by lying when it informed Razien
he was being terminated for inadequate job performance. The statute of limitations for filing a
charge of employment discrimination may be equitably tolled, but equitable tolling is a narrow
exception to be applied sparingly. Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 880 (5th Cir.
2003). It is up to the court to evaluate whether such doctrines should be applied. Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). The Fifth Circuit has developed its own
guidelines for equitable tolling. Under them, equitable tolling is appropriate when the employer’s
affirmative acts mislead the employee and induce him not to act within the limitations period.
Ramirez v. City of San Antonio, 312 F.3d 178, 184 (5th Cir. 2003).
Razien’s equitable tolling argument is quite contorted. He relies on several communications
from the TWC regarding his eligibility for unemployment compensation, ending with a notice dated
September 10, 2015, stating he was eligible because he had not been terminated for “misconduct.”
Dkt. No. 12-4. He asserts that this letter marks the date he learned that the “true reason” he was
terminated was not his performance, but was discrimination. He also asserts that the date a party
could take an appeal of this decision—September 24, 2015—is the date until which the Court
should toll the limitations period, and thus his July 12, 2016 charge, filed 292 days later, was timely.
This argument fails for various reasons. First, Razien conflates the TWC’s finding of no
misconduct with a rejection of Micro Focus’s stated reason for firing him. The standard for
“misconduct” that disqualifies a worker from receiving unemployment benefits is defined by statute:
“Misconduct” means mismanagement of a position of employment by action or
inaction, neglect that jeopardizes the life or property of another, intentional
wrongdoing or malfeasance, intentional violation of a law, or violation of a policy or
rule adopted to ensure the orderly work and the safety of employees.
TEX. LABOR CODE § 201.012(a). See also TEX. LABOR CODE § 207.044(a). Failing to meet
expectations for sales or other performance related issues is not the same as “misconduct.” Thus,
the notification from the TWC that it had concluded that Razien was not fired for misconduct was
not a finding that Micro Focus’s stated reason for his firing was false, or pretextual. Put another
way, the finding by the TWC was not a finding that it did not believe that Micro Focus had fired
Razien for poor work performance. Instead, it was the application of a specific statutory definition
to a termination. Razien’s claim that it was only when he received this notice that he realized he had
been discriminated against is therefore flawed. On an equitable tolling argument, the issue is
whether the employer actively misled the employee to cause him not to pursue a claim in a timely
manner. Even accepting Razien’s approach, the facts do not demonstrate that Micro Focus misled
him in the TWC proceedings. Instead, Micro Focus continued to assert to the TWC what it told
Razien when he was fired—that he was fired for poor performance. The TWC’s conclusion that his
(allegedly) poor performance did not amount to “misconduct” said nothing about Micro Focus’s
veracity regarding its reasons for firing Razien.
The chronology of the letters from the TWC further weakens Razien’s claim. The first letter,
dated July 9, 2015, stated that he was not entitled to benefits because
your employer fired you because you did not perform your work to the employer’s
standards although you have previously demonstrated you were capable of doing
adequate work. This is considered misconduct connected with the work.
Dkt. No. 12-4 at 1. But four days later, the TWC sent another notice changing its determination,
finding him eligible for benefits because it now “found that your employer fired you for a reason that
was not misconduct connected with the work. Id. at 3. While the TWC sent two subsequent letters
regarding his eligibility for benefits, neither of them changed this finding.1 Finally, on September
10, 2015, the TWC sent a notice confirming what it had already said in July—that Razien was
entitled to benefits because he had not been fired for misconduct. Id. at 9. Importantly, the three
letters that addressed this question all share the same “Issue” line at the top of the page: “Separation
from Work.” The other two have different “Issue” lines (“Remuneration - Additional Payment” and
“Filing - Payment Requests”). In addition, the second letter, dated July 13, 2015, expressly states
at the top that it is a “CORRECTED DETERMINATION.” None of the other four notices contain
this language. Focusing on the notices in which TWC was addressing Razien’s “Separation from
work,” the chronology is thus:
July 9, 2015
Ineligible - reason for termination is “misconduct”
July 13, 2015
Eligible - not fired for misconduct (“Corrected Determination”)
September 10, 2015 Eligible - not fired for misconduct
Therefore, even if it is assumed that something about Micro Focus’s actions on Razien’s claim for
unemployment compensation actively misled him and caused him to delay filing an EEOC charge,
the fact he claims alerted him to this deception—the finding of no misconduct—was made known
to Razien in July 2015, not September 2015, well more than 300 days before he filed his claim.
Third, Razien informed Micro Focus in an email on March 26, 2016, that he was planning
to file an EEOC charge on the basis of disability discrimination. Dkt. No. 14-2.2 There is therefore
On July 13, 2015, the TWC sent a notice that “the additional payment [Razien] received
from [Micro Focus] disqualifie[d]” him from benefits until July 4, 2015, and on August 4, 2015, it
sent a notice that Razien was not entitled to benefits before July 11, 2015, because he “could have
submitted [his] payment request(s) within the time allowed but [he] did not do so.” Id. at 5, 7.
Razien attached this email to his Response to the Motion to his Dismiss . The email is
offered in support of the tolling argument referenced in his Complaint. Micro Focus objected to the
inclusion of the evidence as outside the pleadings, but addressed it in its Response nonetheless.
no doubt that by this date Razien believed he had been discriminated against. Yet he did not file a
charge until July 12, 2016—over three months later. To get the benefit of the equitable tolling
doctrine, the claimant himself must show he was diligent in pursuing his claim. Wilson v. Sec'y,
Dep't of Veterans Affairs ex. rel. Veterans Canteen Servs., 65 F.3d 402, 404 (5th Cir. 1995); Baldwin
Cty. Welcome Ctr., 466 U.S. at 151 (“One who fails to act diligently cannot invoke equitable
principles to excuse that lack of diligence.”). Razien cannot meet this standard given this three
month delay, and is thus not eligible for equitable tolling.
Finally, even if it is assumed that it was not until the TWC’s final letter that Razien was
informed of something relevant to his claim here, and even if it is further assumed that he was
sufficiently diligent in filing his claim, Razien’s charge was not filed within 300 days of his receipt
of the final TWC letter. Razien did not file the charge until July 12, 2016. Dkt. No. 12 at ¶ 80.
Three hundred days before this filing date is September 16, 2015. Razien received the final TWC
communication on September 10, 2015. Id. at ¶ 32. Thus, even using this date, he was 6 days late
with his charge. Cognizant of the fact that even using the September 10, 2015, receipt date of the
TWC’s final letter does not save his suit, Razien contends that the Court should look instead to the
September 24, 2015 appeal date for that final communication. He wholly fails to explain why that
would make sense, or to cite any authority for his argument. As already mentioned, the question on
equitable tolling focuses on whether there were actions by the employer that actively misled the
employee. There is nothing about the appeal deadline from this final letter that pertains to, or
Similarly, while it is not entirely clear that the Court may consider the email, but see, Isquith for &
on Behalf of Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 194 n. 3 (5th Cir. 1988), because
consideration of the email does not change the outcome, and because Razien is the party raising the
issue, the Court addresses the argument.
demonstrates, any actions by Micro Focus. Thus, even using Razien’s best case argument, his
equitable tolling argument fails.
Razien makes a final, last ditch alternative argument to his equitable tolling argument. He
claims that his EEOC charge is not untimely as it relates back to a letter he sent to Micro Focus on
March 26, 2016, informing it he was going to file an EEOC charge. He relies on caselaw that he says
stands for the proposition that an untimely EEOC charge may relate back to an earlier document that
is not itself an EEOC charge. Henderson v. Wal Mart Stores Tex. LLC, 2010 WL 1525551 (S.D.
Tex. 2010). However, that case held that the plaintiff’s earlier correspondence with the EEOC did
not qualify as a charge, and thus the later charge did not relate back and did not toll the statute of
limitations. In this case, Razien relies on e-mail correspondence he sent to his former employer,
stating that he was planning on filing an EEOC charge. Dkt. No. 14-2. The letter was not sent to the
EEOC. Razien’s letter to his former employer is insufficient to implicate any relation back doctrine,
as that doctrine only applies to contact with the charging agency.
In short, Razien has failed to establish that he filed a timely complaint against Micro Focus
with the EEOC, or that he should receive the benefit of equitable tolling for missing his deadline.
His ADA claims against Micro Focus are therefore time barred.
Claims Against Hewlett Packard
Was Hewlett Packard Razien’s “Employer”?
To be liable under the ADA, a defendant must have been the plaintiff’s employer. Bloom
v. Bexar Cnty., Tex., 130 F.3d 722, 724 (5th Cir. 1997) (“Bexar County is not a ‘covered entity’ with
regard to Bloom because Bexar County was not Bloom's employer.”). In Burton v. Freescale
Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015), the Fifth Circuit adopted the “hybrid economic
realities/common law control test” to determine the existence of an employment relationship for
purposes of the ADA. Id. at 227. “The right to control an employee’s conduct is the most important
component of this test.” Id. (quoting Deal v. State Farm Cnty. Mut. Ins. Co. of Tex., 5 F.3d 117, 119
(5th Cir. 1993)). In examining the “control” component, the court considers “whether the alleged
employer has the right to hire and fire the employee, the right to supervise the employee, and the
right to set the employee’s work schedule.” Id. The economic realities component “focuse[s] on
whether the alleged employer paid the employee’s salary, withheld taxes, provided benefits, and set
the terms and conditions of employment.” Id.
In this case, Razien asserts that Hewlett Packard “consented” to the actions of Micro Focus
“either expressly, implicitly, or by acquiescence” and “was in direct collaboration in conjunction
with Micro Focus regarding the merger or acquisition of Micro Focus and related terminations and
layoffs by Micro Focus.” Dkt. No. 12 at 6. Razien fails to plead that Hewlett Packard had the right
to hire or fire him, the right to supervise him, the right to set his work schedule, pay his salary,
withhold taxes, provide benefits, or any other of the characteristics necessary to establish an
employer-employee relationship. The fact that Hewlett Packard was considering the acquisition of
Micro Focus, and Micro Focus might have terminated employees to make itself a more desirable
target to Hewlett Packard is insufficient to establish that Hewlett Packard was Razien’s “employer”
for purposes of this litigation. The merger/acquisition occurred after Razien’s termination, and thus
Hewlett Packard does not qualify as a “covered entity” under the statute.
Failure to Name Hewlett Packard in the EEOC Charge
Additionally, Hewlett Packard moves to dismiss on the basis that Razien failed to name
Hewlett Packard in his discrimination charge filed with the EEOC and therefore failed to exhaust
his administrative remedies. Plaintiffs proceeding under the ADA must comply with the same
procedural requirements articulated in Title VII, and this includes the duty to exhaust administrative
remedies. 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e–5. “[A] party not named in an EEOC charge
may not be sued under Title VII unless there is a clear identity of interest between it and the party
named in the charge or it has unfairly prevented the filing of an EEOC charge.” Way v. Mueller
Brass Co., 840 F.2d 303, 307 (5th Cir. 1988); see also McCain v. Lufkin Indus., Inc., 519 F.3d 264,
273 (5th Cir. 2008) (“Courts should not condone lawsuits that exceed the scope of EEOC
exhaustion, because doing so would thwart the administrative process and peremptorily substitute
litigation for conciliation.”). The filing of an additional charge to name another party is unnecessary
where the additional party has been provided with adequate notice of the charge and been given the
opportunity to participate in conciliation proceedings. Burwell v. Truman Med. Ctr., Inc., 721
F.Supp. 230, 233-34 (W.D. Mo. 1989)). In this case, Razien only named Micro Focus in his initial
charge. Razien failed to plead that he notified Hewlett Packard of the charge, or that it was given
a chance to respond and participate in conciliation. Additionally, Razien fails to plead that Micro
Focus and Hewlett Packard are joint employers or share an identity, as he asserts that Hewlett
Packard played a separate and independent role in his termination. The failure to name Hewlett
Packard in the claim is another reason why the claims against it should be dismissed.
State Law Claims
Razien also brings various state law causes of action based on the Court’s supplemental
jurisdiction. A district court may decline to exercise supplemental jurisdiction if it “has dismissed
all claims over which it has original jurisdiction.” “District courts enjoy wide discretion in
determining whether to retain supplemental jurisdiction over a state claim once all federal claims are
dismissed.” Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993). The Court recommends that Razien’s
state law claims be dismissed without prejudice.
The undersigned RECOMMENDS that the District Court GRANT Defendant Micro Focus
(US), Inc.’s Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim (Dkt. No. 13) and GRANT
Defendant Hewlett Packard Enterprise Company’s Motion to Dismiss Plaintiff’s Second Amended
Complaint and Brief in Support (Dkt. No. 16), that it dismiss all federal law claims for failure to
state a claim,3 and that if dismiss all state law claims without prejudice. IT IS FURTHER
ORDERED that this case be REMOVED from the undersigned’s docket.
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
The general rule is that a court should not dismiss a claim pursuant to Rule 12(b)(6) without
granting leave to amend, unless the defect is simply incurable or the plaintiff has failed to plead with
particularity after being afforded repeated opportunities to do so. Hart v. Bayer Corp., 199 F.3d 239,
248 (5th Cir.2000) (other citations omitted). The Court need not grant leave to amend here, as
Razien has already amended his Complaint twice, the second of which was explicitly filed as an
attempt to address Micro Focus’s motion to dismiss. Dkt. No. 10 at 1. Further, the limitations issue
that defeats Razien’s suit is not curable by an amendment.
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
SIGNED this 25th day of April, 2017.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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