Campos v. Insurance & Bonds Agency of Texas, LLC
Filing
14
ORDER GRANTING IN PART AND DENYING IN PART 6 Motion to Dismiss. Signed by Judge David Ezra. (rf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MONICA CAMPOS,
)
)
Plaintiff,
)
)
vs.
)
)
INSURANCE & BONDS AGENCY )
OF TEXAS, LLC, D/B/A IBTX
)
RISK MANAGEMENT SERVICES, )
)
)
Defendant.
)
____________________________ )
CV. NO. SA-12-CV-00799-DAE
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION TO DISMISS
On January 23, 2013, the Court heard Defendant’s Motion to Dismiss
(“Motion”). Arthur G. Vega, Esq., appeared at the hearing on behalf of Monica
Campos (“Plaintiff”); Lea A. Ream, Esq., appeared at the hearing on behalf of
Insurance & Bonds Agency of Texas (“Defendant”). After reviewing the Motion
and the supporting and opposing memoranda, the Court GRANTS IN PART and
DENIES IN PART Defendant’s Motion. (“Mot.,” Doc. # 6.)
1
BACKGROUND
On August 24, 2011, Plaintiff filed the instant action for recovery
pursuant to Title VII of the Civil Rights Act of 1964. Plaintiff claims that
Defendant engaged in unlawful discrimination by subjecting her to harassment,
hostile work environment, retaliation, and disparate treatment on the basis of her
gender. (“Compl.,” Doc. # 1.)
According to the Complaint, Plaintiff’s company, San Antonio Surety
Specialists, merged with Defendant in June of 2005. (Compl. ¶ 10.) Both
Plaintiff’s company and Defendant performed insurance-related services. (Id. ¶¶ 9,
11.) After the merger, Plaintiff became an employee of Defendant, and was
primarily responsible for maintaining San Antonio Surety Specialists’ “book of
business” by continuing to serve its clients. (Id. ¶ 14.) In accordance with the
terms of the merger agreement, Plaintiff received an annual salary of $45,000 plus
a 50% commission on contract surety bonds issued. (Id. ¶ 15.)
Plaintiff alleges that from June 2010 until her termination in October
2011, she was subjected to harassment by Joseph Claybourne (“Claybourne”),
Defendant’s President. (Id. ¶ 17.) According to the Complaint, Claybourne’s
verbal harassment and ridicule created a hostile work environment. (Id. ¶ 19.)
Plaintiff claims that, at a managerial staff meeting, Claybourne openly and publicly
2
criticized Plaintiff for making a suggestion regarding Defendant’s business model.
(Id. ¶ 18.) When Plaintiff complained about Claybourne’s behavior to Robert
Nelson (“Nelson”) and Bryan Moore (“Moore”), two of Defendant’s owners, they
advised her not to speak during managerial staff meetings and to avoid
confrontations with Claybourne. (Id. ¶¶ 20–21.) They warned Plaintiff that
Claybourne had a tendency to become hostile and combative when challenged.
(Id.) When Plaintiff attempted to discuss Claybourne’s conduct with Nelson on
another occasion, Nelson told Plaintiff to “go home and cool off.” (Id. ¶ 22.)
In November 2010, Plaintiff alleges that, while at an offsite managers’
meeting, Claybourne yelled at her when she attempted to explain to him what a
guest speaker was talking about. (Id. ¶ 23.) According to Plaintiff, Claybourne
shouted that he knew what the speaker was saying. (Id.) Plaintiff claims that she
had to go to the women’s bathroom because she was almost in tears, and the other
managers present were “visibly and noticeably uncomfortable.” (Id.)
Plaintiff asserts that in February 2011, Randy Purvis (“Purvis”),
Defendant’s Chief Financial Officer, told her that she would no longer be paid for
visits to her clients, and she was subsequently denied full payment for a trip to
Defendant’s Dallas office. (Id. ¶ 26.)
The Complaint alleges that in June 2011, Moore told Plaintiff that he
3
did not like the way she dressed or her personality and thought her position in the
company was ridiculous. (Id. ¶ 24.) In July 2011, Plaintiff asserts that Purvis
yelled curse words at her in a managers’ meeting after she disagreed with him. (Id.
¶ 25.) According to Plaintiff, Purvis’ conduct made others at the meeting “visibly
and noticeably uncomfortable.” (Id. ¶ 25.) Plaintiff alleges that Lori Green
(“Green”), Defendants’ Chief Operating Officer, was present but did nothing to
stop Purvis’ “verbal attack.” (Id. ¶ 25.)
Also in July 2011, Plaintiff claims that Purvis told her that Claybourne
was going to cease paying her commissions. (Id. ¶ 27.) Plaintiff alleges that other
male salespeople employed by Defendant did not have their commissions reduced
to 0%. (Id.) When Plaintiff asked Green to reconsider the decision to cease paying
her commissions, she alleges that Green advised her not to speak to Claybourne
about it. (Id. ¶ 30.)
According to the Complaint, in October 2011 Plaintiff reassigned her
accounts to another employee, Clark Fresher (“Fresher”), since Green, Purvis, and
Claybourne had eliminated Plaintiff’s position as a producer. (Id. ¶ 32.) Plaintiff
claims that she discussed the reassignment with Moore but “he was not interested
in the topic and ignored [her].” (Id. ¶ 31.) After the reassignment, Green informed
Plaintiff that she was being terminated for “unethical business conduct” associated
4
with the reassignment. (Id. ¶ 32.) When Plaintiff asked why Fresher was not
being terminated, Green allegedly told her that Fresher was “more honest.” (Id.
¶ 33.) Plaintiff claims that when she asked Green if Fresher was going to pay
Plaintiff for business acquired, Green said she “guessed so,” although Claybourne
had previously paid commissions to another male employee for acquiring an
account. (Id. ¶ 33.)
On December 30, 2011, Plaintiff filed a formal charge of
discrimination with the Texas Workforce Commission Civil Rights Division
(“TWCCRD”) and the Equal Employment Opportunity Commission (“EEOC”).
(Mot. at 11.) The administrative charge asserts that, on or about July 6, 2011,
Purvis told Plaintiff she would no longer be paid quarterly commissions or
commissions on existing accounts; that she would not be assigned any new
accounts; and that she would no longer be paid mileage. (Id.) The charge alleges
that no male producers were affected by the policy changes, and states that Plaintiff
complained about the changes to her supervisor, Green, on more than one
occasion. (Id.) It further alleges that, on or about September 28, 2011, Claybourne
took an account from Plaintiff and assigned it to another producer. Finally, it
states that Plaintiff was discharged on October 24, 2011 by Green. (Id.) The
administrative charge concludes with the following: “I believe that I have been
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discriminated against because of my sex, female, and for opposing unlawful
employment practices, in violation of Title VII of the Civil Rights Act of 1964.”
(Id.) Plaintiff received a Notice of Right to Sue on May 24, 2012 from the EEOC.
(Compl. ¶ 40.)
On August 24, 2011, Plaintiff filed her Complaint with this Court.
(Compl.) Defendant filed the instant Motion on September 18, 2012 (“Mot.,” doc.
# 6), and Plaintiff filed a Response in Opposition on October 12, 2012 (doc. # 8).
Defendant filed a Reply on October 23, 2012. (Doc. # 9.)
STANDARDS OF REVIEW
I.
Rule 12(b)(1)
Pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1), a
defendant may move to dismiss a complaint for lack of subject matter jurisdiction.
The plaintiff, as the party asserting jurisdiction, bears the burden of proving that
subject matter jurisdiction exists. Choice Inc. of Tex. v. Greenstein, 691 F.3d 710,
714 (5th Cir. 2012). A district court may dismiss for lack of subject matter
jurisdiction on any one of the following bases: “(1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court's resolution of disputed
facts.” Voluntary Purchasing Grps., Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir.
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1989). However, “a motion to dismiss for lack of subject matter jurisdiction
should be granted only if it appears certain that the plaintiff cannot prove any set of
facts in support of his claim that would entitle plaintiff to relief.” Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001).
II.
Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” Review
is limited to the contents of the complaint and matters properly subject to judicial
notice. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
In analyzing a 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
plaintiff.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467
(5th Cir. 2004)). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff 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, 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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DISCUSSION
Defendant seeks to dismiss Plaintiff’s claim pursuant to Rule 12(b)(1)
on the ground that Plaintiff failed to exhaust her administrative remedies before
filing suit in federal court. Defendant argues that, although Plaintiff filed a charge
with the EEOC, she failed to satisfy Title VII’s prerequisites to suit because the
allegations contained within the charge differ from those alleged in the Complaint.
In the alternative, Defendant argues that Plaintiff’s claims should be dismissed
pursuant to Rule 12(b)(6) because it is plain from the face of the Complaint that
her administrative charge was not timely filed.
As a preliminary matter, the Court notes that some courts have
expressed reservations about dismissing claims for failure to exhaust
administrative remedies pursuant to Rule 12(b)(1). See, e.g., Boswell v. Dep’t of
Treasury, Office of Comptroller, 979 F. Supp. 458, 462 n.1 (N.D. Tex. 1997)
(“[T]he Court observes that . . . Rule 12(b)(1) may not represent the most
appropriate vehicle for dismissing a claim on the ground that the plaintiff failed to
exhaust administrative remedies.”). This is so because there is disagreement within
the Fifth Circuit as to whether exhaustion is “merely a prerequisite to suit, and thus
subject to waiver and estoppel, or whether it is a requirement that implicates
subject matter jurisdiction.” Pacheco v. Mineta, 448 F.3d 783, 788 n.7 (5th Cir.
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2006) (discussing Fifth Circuit case law). If exhaustion is merely a prerequisite to
suit, failure to exhaust is not a jurisdictional defect, and dismissal under 12(b)(1) is
not appropriate. See Bailey v. Napolitano, No. 3:11-CV-1110-L, 2012 WL
1658790 (N.D. Tex. May 11, 2012) (treating non-exhaustion of administrative
remedies as a failure to satisfy a prerequisite to suit). The Court observes that the
panel in Pacheco acknowledged the Fifth Circuit split on this issue but nevertheless
affirmed the district court’s 12(b)(1) dismissal for failure to exhaust, see Pacheco,
448 F.3d at 792, and concludes that it may address Defendant’s motion pursuant to
Rule 12(b)(1). Cf. Boswell, 979 F. Supp. at 462 n.1 (“Given this lack of
consistency, the Court finds that it is not precluded from addressing the issue in the
context of a Rule 12(b)(1) motion.”).
Title VII of the Civil Rights Act of 1964 prohibits employment
discrimination on the basis of “race, color, religion, sex, or national origin,” 42
U.S.C. § 2000e-2, and forbids employers from retaliating against employees for
opposing unlawful employment practices, 42 U.S.C. § 2000e-3. Before an
individual may commence a civil action under Title VII in federal court, she must
exhaust her administrative remedies. See Taylor v. Books a Million, Inc., 296 F.3d
376, 378–79 (5th Cir. 2002). Exhaustion occurs when the aggrieved employee
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files a charge with the EEOC1 and receives notice of her right to sue. See 42
U.S.C. § 2000e-5(f)(1); see also Price v. Choctaw Glove & Safety Co., Inc., 459
F.3d 595, 598 (5th Cir. 2006). The timely filing of a charge is, therefore, at least a
prerequisite to suit, see United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n.4
(1977), and perhaps a jurisdictional requirement, see, e.g., Tolbert v. United States,
916 F.3d 245, 247 (5th Cir. 1990) (“[I]t is the well-settled law of this circuit that
[exhaustion of administrative remedies] is a prerequisite to federal subject matter
jurisdiction.”).
The administrative exhaustion requirement exists in large part to allow
the EEOC an opportunity to investigate and resolve grievances prior to the
institution of a lawsuit. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 44
(1974) (“Cooperation and voluntary compliance . . . [are] the preferred means for
achieving [Title VII’s goals]. To this end, Congress created the [EEOC] and
established a procedure whereby . . . the Commission[] would have an opportunity
The initial charge must be filed no more than 180 days after the alleged
1
unlawful employment practice occurred, or within 300 days if the complainant
filed the initial charge with a state or local agency. See 42 U.S.C. § 2000e-5(e)(1)
(“A charge under this section shall be filed within one hundred and eighty days
after the alleged unlawful employment practice occurred . . . except that in a case
of an unlawful employment practice with respect to which the person aggrieved
has initially instituted proceedings with a State or local agency with authority to
grant or seek relief from such practice . . . such charge shall be filed by or on
behalf of the person aggrieved within three hundred days after the alleged unlawful
employment practice occurred.”).
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to settle disputes through conference, conciliation and persuasion before the
aggrieved party was permitted to file a lawsuit.”); Pacheco, 448 F.3d at 788–89
(“[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.”). An administrative charge also serves the
purpose of “providing the employer with notice of the alleged discrimination so
that they may begin to activate appropriate conciliatory measures.” Brown v. Dr.
Pepper/Seven Up, Inc., No. Civ. A. 399CV0156P, 2000 WL 370669, at *9
(N.D.Tex. Apr. 11, 2000); see also Terrell v. U.S. Pipe & Foundry Co., 644 F.2d
1112, 1124 (5th Cir. Unit B May 14, 1981), vacated on other grounds Int’l Ass’n
of Machinists & Aerospace Workers, AFL-CIO v. Terrell, 456 U.S. 968 (1982)
(holding that administrative charge did not encompass claims against unions where
the charge did not give “even . . . informal notice” to the unions).
Consequently, “the scope of a Title VII suit [may] extend as far as, but
not further than, the scope of the EEOC investigation which could reasonably grow
out of the administrative charge.” Fine v. GAF Chem. Corp., 995 F.2d 576, 578
(5th Cir. 1993) (quoting Terrell, 644 F.2d at 1123). Because most complaints are
initiated pro se, the courts construe administrative charges liberally, looking
“slightly beyond [a charge’s] four corners, to its substance rather than its label.”
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Pacheco, 448 F.3d at 788–89. A Title VII cause of action may thus “be based, not
only upon the specific complaints made by the employee’s initial EEOC charge,
but also upon any kind of discrimination like or related to the charge’s
allegations.” Fellows v. Universal Rests., Inc., 701 F.2d 447, 451 (5th Cir. 1983).
Plaintiff’s administrative charge alleges that Defendant discriminated
against her on the basis of her sex by denying her commissions and reimbursement
and refusing to assign her new accounts.2 (Doc. # 6 at 11.) The administrative
charge also alleges that Defendant retaliated against Plaintiff for complaining about
the discriminatory treatment. (Id.) By contrast, in the instant action Plaintiff
asserts claims for harassment, hostile work environment, and retaliation for
complaining about the harassment, in addition to the claims alleged in the
administrative charge: namely, disparate treatment sex discrimination and
retaliation for complaining about the disparate treatment. Therefore, this Court
must answer the following question: might an investigation of harassment, hostile
work environment, and retaliation for complaining about harassing behavior
reasonably have been expected to grow out of the facts Plaintiff alleged in the
2
When a party “challenges the existence of subject matter jurisdiction in
fact . . . matters outside the pleadings, such as testimony and affidavits, are
considered.” Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.
1980). Accordingly, the Court considers the administrative charge filed with the
TWCCRD and the EEOC.
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administrative charge? The Court concludes that the answer is no.
To begin with, the administrative charge alleges no facts that would
even suggest a claim of harassment or hostile work environment. Cf. Pacheco, 448
F.3d at 791 (noting that the plaintiff’s administrative charge alleged none of the
elements of disparate impact). In order to establish a hostile work environment
claim, a plaintiff must prove that (1) she belonged to a protected class; (2) she was
subject to unwelcome harassment; (3) the harassment was based on sex; (4) the
harassment affected a “term, condition, or privilege” of employment; and (5) her
employer knew or should have known of the harassment and failed to take prompt
remedial action. Woods v. Delta Beverage Grp., Inc., 274 F.3d 295, 298 (5th Cir.
2001). Harassment must be “severe and pervasive”; “simple teasing, offhand
comments, and isolated incidents (unless extremely serious)” do not rise to the
level required to establish a Title VII violation. Alaniz v. Zamora-Quezada, 591
F.3d 761, 771 (5th Cir. 2009) (quoting Shepherd v. Comptroller of Pub. Accounts
of State of Tex., 168 F.3d 871, 874 (5th Cir. 1999)). In order to be actionable, “the
working environment must be objectively hostile or abusive.” Alaniz, 591 F.3d at
771 (citing Septimus v. Univ. of Hous., 399 F.3d 601, 611 (5th Cir. 2005))
(emphasis added).
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It is true that harassment on the basis of sex constitutes sex
discrimination, and it is true that in her administrative charge, Plaintiff complained
of sex discrimination. However, the charge consists only of facts that tend to
establish a “disparate treatment” claim: in other words, that Defendant
intentionally treated Plaintiff unfairly because of her sex. See Frazier v. Garrison
I.S.D., 980 F.2d 1514, 1523 (5th Cir. 1993). The facts giving rise to Plaintiff’s
disparate treatment claim are wholly unrelated to the facts giving rise to her
harassment and hostile work environment claims. That harassment on the basis of
sex and disparate treatment on the basis of sex are both forms of sex discrimination
does not mean that a charge alleging one form of sex discrimination necessarily
encompasses the other. See Reno v. Metro. Transit Auth., 977 F. Supp. 812, 819
(S.D. Tex. 1997) (holding that plaintiff’s EEOC charge alleging sex discrimination
did not support a complaint for sexual harassment). Without more “factual
interrelation” between the claims, id., Plaintiff cannot contend that the claims
alleged in the federal suit are “like or related to the [administrative] charge’s
allegations,” Fellows, 701 F.2d at 451, simply because both involve sex.
Furthermore, although Plaintiff alleged retaliation in the
administrative charge, the allegations do not encompass a claim of retaliation for
complaining about harassment. The narrative portion of the charge states that
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Plaintiff complained to her supervisor about the changes to her contract and was
subsequently denied accounts and ultimately discharged. (Mot. at 11.) Nowhere is
mention made of retaliatory treatment for having disclosed harassment by
Claybourne to Nelson and Moore, as alleged in the Complaint. (Compl. ¶ 36.) No
language in the charge would have put Defendant or the EEOC on notice that
Plaintiff was alleging retaliation on that basis. The allegations in the Complaint
regarding such retaliation therefore exceed the scope of the EEOC charge. See
Stevenson v. Bost, No. 5:10-CV-487-FL, 2011 WL 2181735, at *7 (E.D.N.C. June
3, 2011) (holding that plaintiff failed to exhaust administrative remedies with
respect to her retaliation claim although she checked the corresponding box,
because the factual allegations made no mention of the retaliation later complained
of); McLeod v. Lowe’s Home Improvement, No. 1:09-CV-834, 2010 WL
4366901, at *5 (N.D.N.Y. Oct. 28, 2010) (finding failure to exhaust administrative
remedies with respect to claim of retaliation for opposing disability discrimination
where administrative charge alleged only retaliation for opposing racial
discrimination).
In response, Plaintiff argues that the Court has “ancillary jurisdiction”
over Plaintiff’s unexhausted claims pursuant to Gupta v. E. Tex. State Univ., 654
F.2d 411 (5th Cir. 1981). However, Gupta is factually distinguishable from this
15
case. In Gupta, the plaintiff’s teaching contract was not renewed after he filed a
charge with the EEOC complaining of national origin and religious discrimination.
654 F.2d at 413. The Fifth Circuit held that it was unnecessary for the plaintiff to
exhaust administrative remedies prior to bringing a claim for retaliation based on
the non-renewal of his contract, because “the district court has ancillary
jurisdiction to hear such a claim when it grows out of an administrative charge that
is properly before the court.” Gupta, 654 F.2d at 414. In this case, Plaintiff does
not allege that any acts of discrimination grew out of her administrative charge – in
other words, occurred as a result of her filing an administrative charge. Thus, the
holding in Gupta has no application to the case at hand.
Citing to National R.R. Passenger Corp. v. Morgan, 536 U.S. 101
(2002), Plaintiff also argues that because the discriminatory treatment alleged in
her administrative charge and the discriminatory treatment alleged in her
Complaint “collectively constitute[] one unlawful employment practice,” she has
satisfied the exhaustion requirement with respect to all of her claims. (Opp. at 2.)
This argument reflects a misunderstanding of the law. In Morgan, the Supreme
Court held that hostile work environment claims, which by “their very nature
involve[] repeated conduct,” 536 U.S. at 115, will be considered timely filed “so
long as all acts which constitute the claim are part of the same unlawful
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employment practice and at least one act falls within” the relevant Title VII chargefiling limitations period, id. at 122. Morgan does not stand for the proposition, as
Plaintiff seems to contend, that a claimant has exhausted her administrative
remedies so long as her administrative charge complains of discriminatory
treatment generally. Indeed, Morgan addressed only the timeliness of a Title VII
administrative charge, not the scope.
The Court is sensitive to the fact that Plaintiff, like many
complainants, filed her administrative charge pro se. However, the value of
“[protecting] unlettered lay persons making complaints without legal training or
the assistance of counsel,” Fine, 995 F.2d at 578, does not outweigh the need to put
the EEOC and employers on notice of claims of discrimination. See Harris v.
Honda, 213 F. App’x 258, 262 (5th Cir. Dec. 12, 2006) (“The consideration given
to pro se plaintiffs is not enough to outweigh the major underlying purpose of the
exhaustion requirements, which is to ensure that employers have notice of claims
of discrimination.”).
In sum, Plaintiff’s administrative charge does not allege any instances
of harassment, let alone harassment sufficiently severe to create a hostile work
environment, or make any mention of retaliatory treatment for having complained
of harassment. The alleged facts that form the basis of Plaintiff’s disparate
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treatment claim are entirely unrelated to the facts giving rise to her claims of
harassment and hostile work environment, and retaliation for complaining of
disparate treatment is equally unrelated to retaliation for complaining of
harassment. Moreover, the administrative charge states that the earliest instance of
discrimination occurred on July 6, 2011. An investigation of harassment not
complained of and occurring months or even one year before the earliest asserted
instance of discrimination could not reasonably have been expected to grow out of
Plaintiff’s administrative charge. Therefore, the Court finds that Plaintiff failed to
exhaust administrative remedies with respect to her harassment and hostile work
environment claims, and dismisses those claims. The Court also finds that Plaintiff
has failed to exhaust administrative remedies with respect to a claim of retaliation
for opposing harassment, and dismisses her retaliation claim insofar as it is
premised upon her allegation that she was retaliated against for disclosing
Claybourne’s harassment to Defendant’s owners.3
3
At the hearing on the Motion to Dismiss, Defendant claimed for the first
time that the retaliatory conduct complained of in Plaintiff’s administrative charge
was not alleged in her Complaint. Defendant asserted that the only retaliationrelated allegations in Plaintiff’s Complaint deal with retaliation for opposing
harassment, not for opposing the changes made to Plaintiff’s contract in July 2011.
Defendant argued that the Court should therefore dismiss Plaintiff’s retaliation
claim in full for failing to state a claim upon which relief may be granted.
However, Defendant did not advance this argument in its Motion to Dismiss, and
Plaintiff has not had an opportunity to respond. The Court will not dismiss
Plaintiff’s retaliation claim in full based upon an argument raised for the first time
18
Turning to Defendant’s alternative argument, the Court finds that
Plaintiff’s remaining claims for disparate treatment and retaliation satisfy Title
VII’s 300-day charge-filing requirement. Under Title VII, aggrieved individuals
must file a charge of discrimination with the EEOC no more than 300 days after
the alleged unlawful employment practice occurred. See 42 U.S.C. 2000e-5(e)(1);
Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998) (“In a state that, like Texas,
provides a state or local administrative mechanism to address complaints of
employment discrimination, a Title VII plaintiff must file a charge of
discrimination with the EEOC within 300 days after learning of the conduct
alleged.”). Claims based upon an untimely administrative charge must be
dismissed. Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 476–77 (5th Cir.
1991). Plaintiff’s remaining claims are based upon alleged discriminatory acts
occurring between July 6, 2011 and October 24, 2011, well within 300 days of
December 30, 2011, the date Plaintiff filed her administrative charge. (Mot. at 11.)
at the hearing. Cf. United States v. Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010)
(“For obvious reasons, our court generally will not consider an issue raised for the
first time in a reply. . . .”).
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CONCLUSION
The Court GRANTS IN PART Defendant’s Motion to Dismiss (doc.
# 6), dismissing Plaintiff’s harassment and hostile work environment claims as
well as Plaintiff’s retaliation claim insofar as it is premised upon retaliation for
opposing harassment. The Court DENIES Defendant’s Motion to Dismiss with
respect to the balance of Plaintiff’s claims.
IT IS SO ORDERED.
DATED: San Antonio, Texas, January 28, 2013.
_____________________________
David Alan Ezra
Senior United States District Judge
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