Logans v. Herzog Transit Services, Inc.
ORDER GRANTING 13 Partial Motion to Dismiss. Signed by Judge Sam Sparks. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
Case No. A-16-CA-1336-SS
HERZOG TRANSIT SERVICES, INC.,
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Defendant Herzog Transit Services, Inc. (Herzog)'s Partial Motion to Dismiss [#13] and
Plaintiff Narvin Logans (Plaintiff)'s Stipulation of Dismissal and Response [#16]. Having considered
the documents, the governing law, and the file as a whole, the Court now enters the following opinion
Herzog is a transportation company supplying train crews, train dispatchers, and support
persoimel for the operation of passenger trains throughout the United States. Am. Compl. [#9] ¶ 5.
Herzog oversees operations, dispatch, and maintenance for the Capital Metro commuter train system
The recited facts are taken from Plaintiff's Amended Complaint and documents incorporated therein. See
Villarreal v. Wells Fargo Bank, NA., 814 F.3d 763,766(5th Cir. 2016) (reiterating that the court may consider documents
a defendant attaches to a motion to dismiss if they are referred to in the plaintiff's complaint and are central to his claim).
Here, the Court considered the three charges of discrimination Plaintiff filed before instituting this suit and the
corresponding administrative responses as (1) Plaintiff discusses all three charges of discrimination in the Amended
Complaint and (2) the administrative responses are a matter of public record. Am. Compl. [#9] ¶ 14,21; Prewitt v. Cont '1
Auto., 927 F. Supp. 2d 435,447 (W.D. Tex. 2013) ("[A] court may take judicial notice of [Equal Employment Opportunity
Commission (EEOC)] documents as a matter of public record when deciding a Rule 12(b)(6) motion.").
in Austin, Texas. Id. Plaintiff began working as a train operator for Herzog in late 2009. Id. ¶J 6, 12,
In 2013, Plaintiff was diagnosed with Chronic Obstructive Pulmonary Disease (COPD), which
is an umbrella term used to describe progressive lung diseases. Id. ¶ 7. During the course of his
employment with Herzog, Plaintiff took medical leave more than once, but each time he returned to
work after passing Herzog's required physical exam. Id.
At the end of October 2014, Plaintiff, who is black, filed a charge of discrimination against
Herzog with the Austin Equal Employment/Fair Housing Office (Austin Commission), alleging race
discrimination (First Charge). Second Mot. Dismiss [#13-11 Ex.
(First Charge). Plaintiff later
withdrew this charge. On April 4, 2015, the EEOC acknowledged Plaintiff's withdrawal of the First
Charge, "terminat[ing] any further processing of this charge but.. . not affect[ing] the processing of
any other charge." Id. [#13-2] Ex. 2 (Acknowledgment of Withdrawal).
On April 16, 2015, after Plaintiff had been on medical leave for some time, Plaintiff's doctor
cleared him to return to work but instructed him to keep an oxygen tank with him to use if necessary.
Am. Compl. [#9] ¶ 8. Herzog again required Plaintiff to submit to a physical exam, conducted by
Herzog's chosen doctor. Id. ¶ 9. Plaintiff passed the exam, which included demonstrating the ability
to lift fifty pounds. Id. Subsequently, however, Herzog determined Plaintiff could not return to work,
claiming Plaintiff was not fit to work because he could not lift people off a train in the event of an
emergency. Id. Herzog put Plaintiff on medical leave, as delineated by the Family Medical Leave Act,
effective May 1, 2015. Id. ¶ 10.
Later that month, Plaintiff learned Herzog had two openings for dispatcher. Id. ¶ 11. Interested
in the dispatcher positions because they were sedentary, Plaintiff informed Herzog's Austin manager
of his interest. Id. Plaintiff also inquired if he could take an "employee-in-charge"2 position. Id. The
manager responded that Plaintiff could only return to work as a train operator and denied Plaintiff the
opportunity to apply or train for a dispatcher position. Id.
A few weeks after Plaintiff's conversation with the manager, Herzog filled the dispatcher
positions with candidates who appear to be in their thirties. Id. ¶ 12. At the time the positions were
filled, Plaintiff was sixty-four years old. Id.
On July 9, 2015, Plaintiff filed a second charge of discrimination with the Austin Commission
(Second Charge). Second Mot. Dismiss [#13-3] Ex. 3 (Second Charge). In the Second Charge, Plaintiff
alleged Herzog retaliated against him for filing the First Charge and discriminated against him on the
basis of his disability by not allowing him to return to work and not reassigning him to one of the
vacant dispatcher positions. Id. Following an investigation, the Austin Commission issued a letter on
September 29, 2015, indicating it was closing its file on the Second Charge because it was "unable to
conclude that the information obtained establishes violations of the statutes." Id. [#13-4] Ex. 4 (Letter
of Determination). Approximately one month later, on October22, 2015, the EEOC issued a Dismissal
and Notice of Rights pertaining to the Second Charge, announcing the EEOC adopted the findings of
the Austin Commission. Id. [#13-5] Ex.
(First Dismissal and Notice of Rights). The First Dismissal
and Notice of Rights informed Plaintiff he could file a lawsuit based on the Second Charge, but the
"lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on
this charge will be lost." Id.
2An "employee-in-charge" acts as a lookout to monitor employee safety close to the rail tracks. Am. Compl. [#9]
Some months later, Plaintiff learned Herzog terminated his employment when he received
notice his health insurance coverage, obtained through his employer, had been terminated effective
November 24, 2015. Am. Compi. [#9] ¶ 13.
On February 21, 2016, Plaintiff filed a third charge of discrimination. Second Mot. Dismiss
[#13-6] Ex. 6 (Third Charge). In the Third Charge, Plaintiff alleged Herzog unlawfully discriminated
against him on the basis of his age and disability and retaliated against him by terminating his
employment and denying his application for the dispatcher position. Id. On approximately October 10,
2016, the EEOC issued a second Dismissal and Notice ofRights, specifying it was "unable to conclude
that the information obtained establishes a violation." Id. [#13-7] Ex. 7 (Second Dismissal and Notice
of Rights). Nevertheless, the EEOC again informed Plaintiff he could file a lawsuit within ninety days
of his receipt of the notice. Id.
On December 27, 2016, Plaintiff brought suit against Herzog. Compl. [#1]. Herzog then filed
a partial motion to dismiss alleging failure to state a claim. First Mot. Dismiss [#7]. Plaintiff thereafter
amended his complaint, alleging (1) unlawful termination in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C.
with Disabilities Act (ADA), 42 U.S.C.
(2) disability discrimination in violation of the Americans
and (3) age discrimination in violation of the
Age Discrimination in Employment Act (ADEA), 29 U.S.C.
621, et seq. Am. Compl. [#9]. Herzog
again moved for partial dismissal under Federal Rule of Civil Procedure 1 2(b)(6). Second Mot.
Dismiss [#13]. Plaintiff filed a response, agreeing to dismiss some claims while opposing the dismissal
of others. Resp. [#16]. Herzog did not file a reply, and the motion to dismiss is now ripe for decision.
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain
statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). 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."
12(b)(6). To survive a motion to dismiss,
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); BellAti. Corp.
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, 566 U.S. at 678. Although a
plaintiff's factual allegations need not establish that the defendant is probably liable, they must
establish more than a "sheer possibility" a defendant has acted unlawfully. Id. Determining plausibility
is a "context-specific task," and must be performed in light of a court's "judicial experience and
common sense." Id. at 679.
In deciding a motion to dismiss under Rule 12(b)(6), a court generally accepts as true all factual
allegations contained within the complaint. Leatherman
Tarrant 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
DSC Commc 'ns Corp., 14 F.3d 1061, 1067 (5th Cir.
1994). In deciding a motion to dismiss, courts "must consider" the complaint, as well as other sources
such as documents incorporated into the complaint by reference and matters ofwhich a court may take
judicial notice. Tellabs, Inc.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
A plaintiff in an employment discrimination case must exhaust administrative remedies before
pursuing claims in federal court. "Exhaustion occurs when the plaintiff files a timely charge with the
EEOC and receives a statutory notice of right to sue." Taylor v. Books A Million,
296 F.3d 376,
379 (5th Cir. 2002) (citation omitted). "Although filing of an EEOC charge is not a jurisdictional
prerequisite, it is a precondition to filing suit in district court." Id. (citation and internal quotation
marks omitted). After receiving a right-to-sue notice from the EEOC, a claimant has ninety days to file
a civil action and that ninety-day period is strictly construed.
at 380 (affirming the district
court's dismissal of an employment discrimination claim because the Plaintiff filed his complaint one
day after the expiration of the ninety-day period).
In its motion to dismiss, Herzog alleges Plaintiff's claims of retaliation and disability
discrimination, as they relate to Herzog' s alleged refusal to allow Plaintiff to apply for or train for one
of the dispatcher positions, are time-barred. Mot. Dismiss [#13] at 7-8. According to Herzog, because
Plaintiff asserted these claims in the Second Charge, Plaintiff was required to file a lawsuit asserting
these claims within ninety days of receiving the First Dismissal and Notice of Rights. Id. As Plaintiff
filed this lawsuit more than ninety days after receiving the First Dismissal and Notice of Rights,
Herzog argues Plaintiff's retaliation and disability discrimination claims concerning the dispatcher
position should be dismissed with prejudice. Id. at 7-9 (noting Plaintiff filed this lawsuit over fourteen
months after the EEOC dismissed the Second Charge).
In his response, Plaintiff agrees to the dismissal of the entirety of his retaliation claim and part
of his disability discrimination claim as it relates to the dispatcher position. See Resp. [#16] at 1-2
(stipulating to the dismissal of all claims except (1) his age discrimination claim concerning the
dispatcher position and (2) his disability discrimination and age discrimination claims regarding his
termination). However, citing National Railroad Passenger Corporation
Morgan, 536 U.S. 101
(2002), Plaintiff appears to argue his claims are not time-barred because he timely filed the Third
Charge. Id. at 2-3. In particular, Plaintiff claims he had either 180 or 300 days to file a charge from
the most recent discrete retaliatory or discriminatory act. Id.
Plaintiff addresses only his timely filing of the Third Charge and not his failure to timely sue
based on the claims asserted in the Second Charge. Resp. [#16] at 2-3. Nevertheless, failure to file a
lawsuit based on the claims asserted in the Second Charge within the required ninety-day window is
fatal to those claims raised in the Second Charge. See Prewitt, 927 F. Supp. 2d at 445 (dismissing
claims asserted in earlier EEOC charges but not sued upon within the corresponding ninety-day filing
period as time-barred). To the extent Plaintiff repeated allegations from the Second Charge in the Third
Charge, Plaintiff cannot circumvent the statute of limitations on a claim by raising it in a later-filed
charge. See Gamel
Grant Prideco, L.P., 625 F. App'x 690, 695 n.2 (5th Cir. 2015) ("A second
right-to-sue letter does not restart the ninety-day window in which a claimant may file a lawsuit.");
Soso Liang Lo
Pan Am. World Airways, Inc., 787 F.2d 827, 828 (2d Cir. 1986) ("[T]he time
limitations of 42 U.S.C.
2000e-5(f)(l) would be meaningless,
. . .
[if] potential Title VII plaintiffs
could evade those requirements simply by seeking additional Notices of Right to Sue whenever they
pleased."). Additionally, Plaintiffalleged no facts to indicate the limitations period should be equitably
tolled. See Granger v. Aaron's, Inc., 636 F.3d 708 (5th Cir. 2011) (discussing possible bases for
Plaintiff does not fully articulate his argument and merely cites to the syllabus of the Supreme Court's opinion
in National Railroad Passenger Corporation, rather than the actual opinion, without explaining how the opinion's
reasoning or holding applies to this case. See Resp. [#16] at 2-3 (citing Nat'! R.R. Passenger Corp., 536 U.S. at 102).
Therefore, the Court agrees with Herzog. The claims asserted in the Second Charge, Plaintiff's
claims of retaliation and disability discrimination as they relate to the dispatcher position, must be
dismissed. Additionally, because Plaintiff stipulates to the dismissal of his retaliation claim as it
concerns his termination, the Court also dismisses this claim.
As the Court dismisses Plaintiff's retaliation claim in its entirety and partially dismisses
Plaintiff's disability discrimination claim, two claims remain: (1) Plaintiff's disability discrimination
claim with respect to termination and (2) his age discrimination claim as it relates to both the
dispatcher position and termination.
IT IS ORDERED that Defendant Herzog Transit Services, Inc.'s Partial Motion to
Dismiss [#13] is GRANTED; and
IT IS FURTHER ORDERED that Plaintiff Narvin Logans's claim of unlawful
retaliation, in its entirety, and his claim of disability discrimination, as it relates to alleged
denial of a dispatcher position, are DISMISSED.
SIGNED this the 3'J day of May 2017.
UNITED STATES DISTRICT JUDGE
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