Wilkens et al v. Toyotetsu America Inc. et al

Filing 35

ORDER DENYING 22 Motion to Dismiss Plaintiffs' claims for lack of subject matter jurisdiction ; GRANTING IN PART AND DENYING IN PART 23 Motion to Dismiss Plaintiff Peggy Pope's claims as barred by limitations. Plaintiffs are ORDERED to advise the COurt of the status of service of process on the remaining parties in this suit no later thank 2/19/10. Signed by Judge Xavier Rodriguez. (tm)

In the United States District Court for the Western District of Texas
C H E R Y L WILKENS, ET AL. v. T O Y O T E T S U AMERICA, INC., E T AL. § § § § §

SA-09-CV-515-XR

ORDER O n this day came on to be considered Defendants Toyotetsu America, Inc. (T T A I ) and Toyotetsu Mid-America, Inc.'s (TTMA) motion to dismiss Plaintiffs' c la im s for lack of subject matter jurisdiction (docket no. 22) and Defendant T o y o te ts u Texas, Inc.'s (TTTX) motion to dismiss Plaintiff Peggy Pope's claims a s barred by limitations (docket no. 23). B a c k g ro u n d P la in t iffs Cheryl Wilkens, Irma Rocha, Peggy Pope and Yoko Tokushima h a v e filed this Title VII sex discrimination lawsuit on behalf of themselves and s i m ila r ly situated employees, former employees, and future employees of TTAI, T T M A , TTTX, Toyoda Iron Works Co. Ltd. and Toyota Motor Corporation. P la in t iffs are all employees or former employees of TTTX. P la in tiff s alleges that the Defendants have engaged in systematic d is c r im in a tio n against female employees on the basis of hiring, compensation, p r o m o t io n , mentoring, training, resource allocation, retention and other terms

a n d conditions of employment in violation of 42 U.S.C. §§ 2000e et seq. In a d d i t io n , Plaintiffs allege that the Defendants have "regularly discriminated a g a in s t female employees by maintaining a hostile work environment, [and] an e n v ir o n m e n t that has permitted and condoned numerous acts of sexual h a r a ss m e n t." Plaintiffs further allege that the "hostile work environment has s ig n ific a n t ly and adversely impacted the job success, career and income of P la in tiffs and other similarly situated female employees (the "Class"). Plaintiffs a n d Class members have been, and continue to be subjected to a glass ceiling ... in that Class members are routinely assigned to the lowest-paying positions and g ive n little or no opportunity to advance to higher ranking positions." Plaintiffs a lle g e that the "glass ceiling is the direct product of a management structure and s y s t e m ... designed and instituted by Toyota and often referred to as the `Toyota W a y .'" Plaintiffs also allege that Defendants "have systematically retaliated a g a in s t Plaintiffs for complaining about Defendants' discriminatory and unfair tr e a tm e n t of Plaintiffs." T T M A and TTAI's motion to dismiss T T M A and TTAI seek dismissal of Plaintiffs' claims, arguing that they w e r e not Plaintiffs' employer, and accordingly, no Title VII jurisdiction exists. A lt e r n a t iv e ly , they argue that Plaintiffs never filed any charge of discrimination 1 a g a in s t them and accordingly did not exhaust their administrative remedies. P la in t if fs respond that although TTMA, TTAI and TTTX may operate

The only charges of discrimination provided to the Court indicate that all four individual plaintiffs filed a charge of discrimination only against Toyotetsu Texas.

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u n d e r different corporate names, they comprise a single entity or single e m p l o y e r for Title VII purposes. They allege that the various companies are w h o lly -o w n e d by Defendants Toyota Motor Corporation and Toyoda Iron Works C o ., Ltd. Plaintiffs allege that TTAI, TTMA and TTTX draw their management a n d supervisory employees from the same source and that the companies share a common set of employment practices. Analysis I n Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983), the Fifth Circuit a d o p t e d a "single employer" test to determine when two or more private entities s h o u ld be aggregated for the purposes of determining whether they constitute a n employer under Title VII. The four-part Trevino test involves consideration o f (1) interrelation of operations; (2) centralized control of labor relations; (3) c o m m o n management; and (4) common ownership or financial control. Id.

a t 404. The second factor of this inquiry is deemed the most important. Id. D e f e n d a n t s have filed their motion not as a motion for summary judgment, b u t rather, as a motion to dismiss pursuant to Fed. R. Civ. P 12(b)(1) and (6). A Rule 12(b)(1) motion should be granted only "if it appears certain that t h e plaintiff cannot prove a plausible set of facts that establish subject-matter ju r is d ic t io n ." Castro v. United States, 560 F.3d 381, 386 (5th Cir. 2009). The court reviews a Rule 12(b)(6) motion to dismiss "accepting all w e l l- p l e a d e d facts as true and viewing those facts in the light most favorable to t h e plaintiff." Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007). "Factual

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a lle g a tio n s must be enough to raise a right to relief above the speculative level." B ell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 ( 2 0 0 7 ) . Recently, the Supreme Court explained that "[t]o survive a motion to d is m is s , a complaint must contain sufficient factual matter, accepted as true, `to s t a t e a claim that is plausible on its face.'" Ashcroft v. Iqbal, -- U.S. ----, 129 S .C t. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). " A claim has facial plausibility when the plaintiff pleads factual content that a llo w s the court to draw the reasonable inference that the defendant is liable for t h e misconduct alleged." Id. T h e motion to dismiss is denied. Plaintiffs allege a plausible set of facts t h a t establish subject-matter jurisdiction. Further, the amended complaint c o n ta in s sufficient factual matter, accepted as true, to state a claim that is p l a u s ib le on its face. A s to Defendants' alternative argument that no EEOC charge was filed a g a in s t TTMA or TTAI, Defendants correctly restate the general law that a p la in tiff must file a charge of discrimination against her employer with the E E O C prior to filing her federal lawsuit. See, e.g., Dao v. Auchan Hypermarket, 9 6 F.3d 787, 788 (5th Cir. 1996). But the Fifth Circuit has also stated "a party n o t 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 h a s unfairly prevented the filing of an EEOC charge." Way v. Mueller Brass Co., 8 4 0 F.2d 303, 307 (5th Cir. 1988). In this case Plaintiffs are alleging that TTMA

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a n d TTAI should be considered along with TTTX as their employer under the " s in g le employer" theory. T h is ruling, of course, is no determination that the "single employer" t h e o r y is or is not applicable to the facts of this case. Should Defendants seek t o reurge their argument, the Court suggests that this should be done by way of a motion for summary judgment with competent summary judgment evidence t o support any such argument. T T T X 's motion to dismiss Pope's claims T T T X seeks dismissal of Pope's claims, alleging that Pope filed her first c h a r g e of discrimination with the EEOC on August 29, 2008. On September 11, 2 0 0 8 , the EEOC issued a Dismissal and Notice of Rights letter. Pope did not file a n y Title VII lawsuit thereafter within the required 90 days.2 R a t h e r than filing a lawsuit, Pope returned to the EEOC and filed a s e c o n d charge of discrimination on December 9, 2008, which raised the same a lle g a t io n s as her first charge. A n a ly s is If a complaint fails to state a claim upon which relief can be granted, a c o u r t is entitled to dismiss the complaint as a matter of law. Fed. R. Civ. P . 12(b)(6). Courts may look only to the pleadings in determining whether a

Under 42 U.S.C. § 2000e-5(f), a suit must be filed within ninety days of receipt of a right-to-sue letter. See Taylor v. Books A Million, Inc., 296 F.3d 376, 380 (5th Cir. 2002). A person who fails to file a complaint within the ninety-day period forfeits the right to pursue the claim. Espinoza v. Missouri Pacific R.R. Co., 754 F.2d 1247, 1251 (5th Cir. 1985). The ninety-day filing period acts as a statute of limitations, unless a plaintiff failed to receive the letter through no fault of his own or if he presents some other reason for equitable tolling. Id.

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p a r ty has adequately stated a claim; consideration of information outside the p le a d in g s converts the motion to one for summary judgment. Fed. R. Civ. P. 1 2 ( d ). Both sides here refer the Court to information outside the pleadings. A c c o rd i n g ly , the Court treats Defendant's motion as a motion for summary ju d g m e n t . S u m m a r y judgment is appropriate if the pleadings, the discovery and d is c lo s u r e materials on file, and any affidavits show that there is no genuine is s u e as to any material fact and that the movant is entitled to judgment as a m a tt e r of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 4 7 , 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden is on the moving party t o show that "there is an absence of evidence to support the nonmoving party's c a s e . " Freeman v. Tex. Dep't of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2 0 0 4 ) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L .E d .2 d 265 (1986)). Once the moving party meets its initial burden, the

n o n m o v in g party "must ... set out specific facts showing a genuine issue for tr ia l." Fed. R. Civ. P. 56(e); Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). "A n issue is material if its resolution could affect the outcome of the action. A d is p u te as to a material fact is genuine if the evidence is such that a reasonable ju r y could return a verdict for the nonmoving party." DIRECTV Inc. v. Robson, 4 2 0 F.3d 532, 536 (5th Cir. 2005). I n Soso Liang Lo v. Pan American World Airways, Inc., 787 F.2d 827 (2d C ir . 1986), the plaintiff filed a charge of racial discrimination with the EEOC

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a g a in s t Pan American in 1978. She received her Notice of Right to Sue on F e b r u a r y 9, 1979. However, she failed to bring an action within the next 90 d a y s . She then secured a second Notice of Right to Sue on November 30, 1979, a n d filed a Title VII claim in February 1980. The second Notice was based upon a charge involving exactly the same facts as the first Notice. The Second Circuit h e l d "that whether the present action is time barred must be determined with r e fe r e n c e to only the first Notice of Right to Sue. Otherwise, the time limitations o f 42 U.S.C. § 2000e-5(f)(1) would be meaningless, because potential Title VII p l a in t iffs could evade those requirements simply by seeking additional Notices o f Right to Sue whenever they pleased." Id. at 828. A c c o r d in g l y , this Court turns to an analysis of the two charges to d e t e r m in e whether they involve the same facts or whether different allegations w e r e raised. T h e language in the two charges of discrimination are different. In the fir s t charge Pope alleged that she was discriminated against based on her sex. S h e alleged that from May 2007 through June 2008, she and other female e m p lo y e e s complained about a male assistant manager sending inappropriate e m a ils and pornography to employees. Finally, she complains that she was d is ch a r g e d on February 21, 2008. I n her second charge of discrimination Pope alleged that she was d is cr im in a t e d against based on her sex. She alleged that on February 13, 2008, s h e was subjected to demeaning sexist comments by a male assistant manager. S h e alleges that she previously complained in June 2007 about these comments. 7

S h e alleges that prior to February 13, 2008, she and other female employees w e r e subjected to differing terms and conditions of employment as compared to m a le employees with regard to the above issues and others including promotion, e q u a l pay, work assignments, and training. B o th charges raise allegations that Plaintiff was subjected to sexual h a r a ss in g acts prior to her discharge on February 21, 2008. Accordingly,

P la in tiff cannot avoid limitations by raising her sexual harassment claims in a s e c o n d charge of discrimination. I n addition, in Plaintiff's first charge of discrimination she alleges that she w a s wrongfully discharged because of her sex. Plaintiff's sex discrimination c la im based on her discharge is barred by limitations. In her second charge (which apparently was timely filed with the EEOC), P la in tiff raised new claims (denials of promotion, equal pay, discriminatory work a s s ig n m e n t s , and disparate training) all allegedly based on sex discrimination. T h e s e are new claims not previously raised in the first charge, and accordingly, P la in t iff may proceed with these new claims. See e.g., Goodluck v. Kelly Tractor C o ., 733 F. Supp. 1479, 1481 (S.D. Fla. 1990) (charge one was based on r e ta lia t io n , charge two was based on race discrimination). The Court concedes t h a t both charges in Pope's claim alleged sex discrimination, however, the Court is persuaded that the nuances between a claim of sexual harassment and a claim o f sex discrimination warrant the conclusion that the two charges assert d i ffe r e n t allegations.

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C o n c lu s io n D e fe n d a n t s Toyotetsu America, Inc. (TTAI) and Toyotetsu Mid-America, I n c .'s (TTMA) motion to dismiss Plaintiffs' claims for lack of subject matter ju r is d ic t io n (docket no. 22) is DENIED. D e fe n d a n t Toyotetsu Texas, Inc.'s (TTTX) motion to dismiss Plaintiff P e g g y Pope's claims as barred by limitations (docket no. 23) is GRANTED IN P A R T AND DENIED IN PART. Pope's sexual harassment claims are dismissed. P o p e 's sex discrimination claim based on her discharge is dismissed. Pope's sex d i s c rim in a t io n claims alleging denials of promotion, equal pay, discriminatory w o r k assignments, and disparate training survive. T h e Court, sua sponte, raises the issue of the status of this case. On N o v e m b e r 30, 2009, this Court granted the parties' joint motion to abate Local R u le CV-23 of the Local Rules of the Western District of Texas. (Docket Entry N o . 21). Plaintiffs are ORDERED to advise the Court of the status of service of p r o c e s s on the remaining parties in this suit no later than February 19, 2010. I t is so ORDERED. S I G N E D this 5th day of February, 2010.

_________________________________ X A V IE R RODRIGUEZ U N I T E D STATES DISTRICT JUDGE

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