Pruitt v. Jourdanton Hospital Corporation d/b/a South Texas Regional Medical Center et al
Filing
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ORDER GRANTING 4 Motion to Dismiss for Failure to State a Claim; DENYING 7 Motion to Dismiss ; DENYING 10 Motion to Dismiss; Accordingly Plaintiff's claims are DISMISSED WITHOUT PREJUDICE. Signed by Judge David A. Ezra. (wg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ANDREA PRUITT,
§
§
Plaintiff,
§
§
v.
§
§
JOURDANTON HOSPITAL CORP. §
d/b/a SOUTH TEXAS REGIONAL
§
MEDICAL CENTER, KAY BREINER, §
LINDA HICKOK, SHELLY
§
FARROW, SHANNA BLALOCK,
§
VANESSA GUZMAN, and VICTOR §
GOMEZ,
§
§
Defendants.
§
________________________________ §
CV NO. 5:14-cv-808-DAE
ORDER: (1) GRANTING DEFENDANTS’ MOTION TO DISMISS;
(2) DENYING PLAINTIFF’S FIRST MOTION TO DISMISS; (3)
DENYING PLAINTIFF’S SECOND MOTION TO DISMISS
Before the Court are three motions to dismiss: the first was filed by
Jourdanton Hospital Corp. d/b/a South Texas Regional Medical Center (“South
Texas Regional Medical Center”), Kay Breiner, Linda Hickok, Shelly Farrow,
Shanna Blalock, Vanessa Guzman, and Victor Gomez (collectively, “Defendants”)
(Dkt. # 4); the second and third were filed by Plaintiff Andrea Pruitt (“Plaintiff” or
“Pruitt”) (Dkts. ## 7, 10). Pursuant to Local Rule 7(h), the Court finds the matter
suitable for disposition without a hearing. For the reasons that follow, the Court
1
GRANTS Defendants’ Motion (Dkt. # 4), DENIES Pruitt’s First Motion (Dkt.
# 7), and DENIES Pruitt’s Second Motion (Dkt. # 10).
BACKGROUND
The instant motions arise out of Pruitt’s employment with South
Texas Regional Medical Center, where Pruitt was employed as a Registered Nurse
in the Cardiopulmonary Department in 2013. (See “Pet.,” Dkt. # 1, Ex. 1, Ex. A at
2; id., Ex. E at 3; id., Ex. I at 2.)
On October 3, 2013, Pruitt met with her supervisor, Kay Breiner
(“Breiner”), for her 90-day evaluation. (Pet., Ex. A at 2.) During the meeting,
Breiner counseled Pruitt on mixing up documentation on patient charts and
checking in with her supervisors before leaving the unit for any length of time.
(Id.) Pruitt understood the action items to be “do-able” and “simple” to implement.
(Pet., Ex. B at 2.)
On October 10, 2013, Pruitt received a written warning that
documented the October 3 conversation and described two incidents that occurred
on October 8, 2013, when Pruitt allegedly challenged a doctor in front of a patient
and later mixed up the paperwork for two patients. (Pet., Ex. A at 2.) The warning
recommended a thirty-day period for Pruitt to correct the behavior at issue, and
noted that another incident within the thirty days would result in a second written
warning. (Id. at 3.)
2
The same day, Pruitt submitted a written response to the written
warning, which clarified the issues discussed on October 3, 2013, as well as the
incidents that occurred on October 8, 2013. (Pet., Ex. B at 2.) Accordingly, Pruitt
refused to sign the written warning on October 11, 2013. (Pet., Ex. C at 3.) On
November 8, 2013, she filed an employee grievance regarding the written warning,
in which she challenged the factual allegations in the written warning and stated
that the “harassment inflicted upon [her] is discriminatory due to my being the only
African American female and being the only Registered Nurse in [the]
department.” (Pet., Ex. E at 3.)
On November 25, 2013, Shanna Blalock (“Blalock”) became Pruitt’s
supervisor, as decided at a meeting between Pruitt, Linda Hickok (“Hickok”), and
Shelly Farrow (“Farrow”). (Pet., Ex. E at 7; id., Ex. G at 7.) On December 17,
2013, Human Resources completed its investigation into Pruitt’s grievance, noting
that the October 10 written warning had been reissued with changes to some of the
contested statements. (Id.) Pruitt again refused to sign the written warning. (Pet.,
Ex. G at 2.)
Pruitt appealed the resolution of her grievance in February 2014,
contending that the harassment that she encountered under Breiner had continued
under the supervision of Blalock. (Pet., Ex. I at 2–5.) Her appeal cited three major
incidents that Pruitt dubbed “harassment.” First, on December 4, Pruitt was
3
working with Vanessa Guzman (“Guzman”), who notified her that “the pulses
were not marked” for a particular patient following a cardiac catherization
procedure. (Id. at 4.) Pruitt acknowledged her oversight, but the next day,
Guzman allegedly falsely stated and yelled to Blalock that Pruitt “did not check the
pulses” of that patient while the three were tending to a different patient. (Id.)
Second, on December 19, 2014, Pruitt alleges that she told Gomez and Blalock in
the morning that she was leaving early at noon. (Id. at 3.) She alleges that she left
at noon after verifying with other staff that there was nothing left on the schedule,
but that at 1:40 p.m., she received a text message from Victor Gomez (“Gomez”)
asking, “Hey Andrea where r u?” (Id.) She also alleges that while she was
responding, she received another message from Blalock. (Id.) Third, during a
meeting on January 17, 2014, Blalock stated, “I don’t know what [Pruitt] is doing
after procedures, I have a hard time finding her” in a meeting with Hickok, Gomez,
and Pruitt. (Id. at 2.) During the same meeting, Pruitt informed the three, orally
and with a supporting physician letter, that her doctor told her she needed a
temporarily reduced workload to address Pruitt’s “Vertebral Subluxation.” (Id.)
Pruitt alleges that Blalock responded that Pruitt “was not able to fulfill her job
responsibilities” several times and refused to grant her leave. (Id. at 2–3.)1
1
The Court notes that, in her supplemental memorandum, Pruitt supplied
additional information regarding a February 2014 written warning, her response,
4
On April 7, 2014, Pruitt filed a charge of discrimination with the
EEOC, in which she alleged a hostile work environment and discrimination claim
based on race and sex as a continuing action running from October 8, 2013 to the
date of filing. (Pet., Ex. N at 7–8.) She received a dismissal and notice of right to
sue on April 16, 2014. (Id. at 3.)
On July 21, 2014, Pruitt filed suit in the Atascosa County District
Court, 81st Judicial District, asserting claims of discrimination and harassment
under Title VII of the Civil Rights Act of 1964 (“Title VII”) against Breiner,
Blalock, Gomez, Hickok, and Farrow; a disparate impact claim under the Civil
Rights Act of 1991 against Breiner, Blalock, Gomez, Farrow, and Hickok; a claim
of “coercive acts” against Breiner; claims of “breach of duty” against Breiner,
Farrow, and Hickok; breach of contract claims against Hickok and Farrow; a
“violation of equal rights” claim against Breiner; a “defamation of character–
slander” claim against Guzman; and an equal protection claim against South Texas
Regional Medical Center. (Pet. at 3–7.) Pruitt seeks the maximum amount of
monetary damages allowable by law. (Id. at 8.)
On September 12, 2014, Defendants removed the case to this Court,
and her subsequent March 2014 grievance, which arose out of the written warning.
This information is not part of Pruitt’s complaint, and therefore not part of the
allegations of her case. Nevertheless, the Court notes that there are no allegations
in any of the supporting documentation that address Pruitt’s race or gender.
5
invoking the Court’s federal question jurisdiction. (Dkt. # 1.) On September 19,
2014, Defendants filed their Motion to Dismiss. (Dkt. # 4.) On October 10, 2014,
Pruitt filed a “Pro-Se Motion to Dismiss Due to Improper Notice and Due Process”
(Pruitt’s “First Motion”), which the Court construes as her Response to
Defendants’ Motion to Dismiss, as well as a Motion to Remand. (Dkt. # 7.) On
October 17, 2014, Defendants filed a Response to Pruitt’s Motion (Dkt. # 8), as
well as a Reply to the Response to the Motion to Dismiss. (Dkt. # 9.) On October
20, 2014, Pruitt filed a second “Pro-Se Motion to Dismiss due to Improper Notice
and Due Process” (Pruitt’s “Second Motion”). (Dkt. # 10.) On January 20, 2015,
the Court granted Pruitt leave to file a supplementary memorandum. (Dkt. # 23.)
On January 23, 2015, Pruitt filed a supplemental memorandum (Dkt. # 24) and on
January 27, 2015, Defendants filed a reply (Dkt. # 27).
LEGAL STANDARD
I.
Motion to Remand
“It is axiomatic that the federal courts have limited subject matter
jurisdiction and cannot entertain cases unless authorized by the Constitution and
legislation.” Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). Unless the Court has
diversity jurisdiction, a defendant may remove a case from state to federal court
only if the case could have originally been filed in federal court. Halmekangas v.
State Farm Fire & Cas. Co., 603 F.3d 290, 295 n.19 (5th Cir. 2010)
6
(citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). Accordingly, a
federal court must remand a case back to state court (1) if there was a procedural
defect rendering removal improper and the moving party raises the defect within
thirty days of removal or (2) if the court lacks subject matter jurisdiction. 28
U.S.C. § 1447; see also BEPCO, L.P. v. Santa Fe Minerals, Inc., 675 F.3d 466, 470
(5th Cir. 2012). Because removal jurisdiction implicates federalism concerns,
“[a]ny doubts regarding whether removal jurisdiction is proper should be resolved
against federal jurisdiction.” African Methodist Episcopal Church v. Lucien, 756
F.3d 788, 793 (5th Cir. 2014) (internal quotation marks omitted) (quoting Acuna,
200 F.3d at 339); Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997).
In the case of remand based on a procedural defect, the thirty-day
period is strictly construed. Schexnayder v. Entergy La., Inc., 394 F.3d 280, 284
(5th Cir. 2004). “[A] motion for remand based on procedural defects that is
brought more than 30 days after the removal of the action, is outside of the district
court’s power to grant.” Id. Conversely, remand based on subject matter
jurisdiction can occur at any time before final judgment. African Methodist
Episcopal Church, 756 F.3d at 793. The party seeking removal bears the burden of
demonstrating subject matter jurisdiction. Shearer v. Sw. Serv. Life Ins. Co., 516
F.3d 276, 278 (5th Cir. 2008). To determine whether jurisdiction is present for
removal, the court considers the claims in the state court petition as they existed at
7
the time of removal. Louisana, 746 F.3d at 636.
II.
Motion to Dismiss
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.” In
analyzing a motion to dismiss for failure to state a claim, the court “accept[s] ‘all
well pleaded facts as true, viewing them in the light most favorable to the
plaintiff.’” United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 727 F.3d
343, 346 (5th Cir. 2013) (quoting In re Katrina Canal Breaches Litig., 495 F.3d
191, 205 (5th Cir. 2007)).
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.” 2 Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
III.
Pro Se Pleadings
It is well-established that courts must liberally construe the filings of
pro se litigants. Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Windland v.
2
The Court notes that the standards set forth in Twombly and Iqbal have replaced
the less stringent standard articulated by the Supreme Court in Conley v. Gibson,
355 U.S. 42, 45–46 (1957), which Pruitt cites in her Response. (Dkt. # 7 at 3.)
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Quarterman, 578 F.3d 314, 316 (5th Cir. 2009) (noting the “well-established
precedent requiring that [the court] construe pro se briefs liberally”). Accordingly,
during a sufficiency inquiry, courts hold pro se complaints to “less stringent
standards than formal pleadings drafted by lawyers.” Hale v. King, 642 F.3d 492,
499 (5th Cir. 2011) (internal quotation marks omitted) (quoting Calhoun v.
Hargrove, 312 F.3d 730, 733 (5th Cir. 2002)). Nevertheless, pro se parties must
still “abide by the rules that govern the federal courts” and must “properly plead
sufficient facts that, when liberally construed, state a plausible claim to
relief.” E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (internal
quotation marks omitted).
DISCUSSION
I.
Pruitt’s Motion to Remand
In her First Motion, Pruitt argues that the Defendants’ Notice of
Removal and Motion to Dismiss are “imperfect” because Gomez has not received
proper notice of the suit. (Dkt. # 7 at 2.) Pruitt states that she has not received
back the “Registered Mailing Summons” for Gomez. (Id.) Accordingly, she
requests that “defendants [sic] motion for Notice of removal” be denied. (Id. at 5.)
To the extent that Pruitt argues that her case should be remanded to state court
based on procedural defect, the Court denies the motion.
Under 28 U.S.C. § 1446(b)(2)(A), “all defendants who have been
9
properly joined and served must join in or consent to the removal of the action.”
Here, it is undisputed that Defendants South Texas Regional Medical Center,
Breiner, Hickok, Farrow, Blalock, and Guzman were all properly served. Each of
those defendants properly joined and consented to the removal. (Dkt. # 1 at 3.)
According to § 1446(b)(2)(A), these are the only parties whose consent to removal
is required to render the removal procedurally effective. See Jernigan v. Ashland
Oil Co. Inc., 989 F.2d 812, 815 (5th Cir. 1993).
Although Pruitt contends that Gomez was not properly served,
ineffectiveness of service does not bar his appearance in the lawsuit. “[R]egardless
of the power of the State to serve process, an individual may submit to the
jurisdiction of the court by appearance.” Ins. Corp. of Ir., Ltd. v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 703 (1982). Although his joinder in the Notice
of Removal did not constitute a general appearance, Gomez has since made a
general appearance in the suit by filing the Motion to Dismiss (Dkt. # 4) and the
Answer (Dkt. # 5). Emp’rs Reinsurance Corp. v. Bryant, 299 U.S. 374, 376 (1937)
(“Obtaining the removal from the state court into the federal court d[oes] not
operate as a general appearance by the defendant.”); accord Roumel v. Drill Well
Oil Co., 270 F.2d 550, 555 (5th Cir. 1959); see also City of Clarksdale v.
BellSouth Telecomm’ns, Inc., 428 F.3d 206, 214 (5th Cir. 2005) (“The filing of the
answer constitutes a voluntary appearance in the federal district court.”).
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Pruitt appears to argue that, because Gomez has joined the Notice of
Removal and because Gomez was improperly served, the removal was defective.
However, the Court can find no authority suggesting that the joinder and consent
of a party who voluntarily submits himself to the jurisdiction of the court would
render the removal defective. Indeed, such a holding would be at odds with the
rationale requiring all proper defendants to consent to removal. See Getty Oil
Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 n.11 (5th Cir. 1988) (noting that
the purpose of the consent requirement is to avoid binding a defendant to federal
jurisdiction without his consent).
Accordingly, there is no procedural defect that requires remand in this
case.3 Therefore, to the extent that Pruitt’s First Motion argues for remand, the
Court DENIES the Motion.
II.
Pruitt’s Motion to Dismiss
Pruitt’s Second Motion asks “that a sworn affidavit be submitted to
the court by Mr. Victor Gomez, to acknowledge his placement in this lawsuit and
3
The Court notes that Defendants have complied with all of the other procedural
requirements under 28 U.S.C. § 1446: Defendants filed the Notice of Removal on
September 12, 2014, which was within 30 days of the earliest service of process on
August 20, 2014; they promptly notified Pruitt and the state court of removal; and
they attached a copy of all process, pleadings, and orders served on Defendants to
their Notice of Removal. See 28 U.S.C. § 1446(a), (b), & (d). Additionally,
because Pruitt alleges claims under Title VII and the United States Constitution,
the Court has subject matter jurisdiction over the case. See 28 U.S.C. §§ 1331,
1367(a).
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that he is aware that the sworn affidavit will serve as his proper notification and
due diligence under Civil Procedure in this matter, so you can adjudicate in honor.”
(Dkt. # 10 at 2.) Additionally, Pruitt cites “Federal Rule of Civil Procedure 3.19.”
(Id. at 1.)
As the Court has discussed above, Gomez has made a voluntary
appearance in the lawsuit by filing an answer and motion to dismiss in the case.
Accordingly, he has made a general appearance and no further action by Gomez is
required. There being no Federal Rule of Civil Procedure 3.19, nor any provision
in Federal Rule of Civil Procedure 3 applicable to the current stage of proceedings,
the Court DENIES Pruitt’s Second Motion.
III.
Defendants’ Motion to Dismiss
In their Motion, Defendants first argue for dismissal of the claims
brought under Title VII and the Civil Rights Act of 1991 because (1) the claims are
time-barred; (2) Title VII does not impose individual liability; and (3) Pruitt has
failed to state any facts supporting a prima facie case of discrimination. (Def. Mot.
at 5–11.) Second, Defendants argue for dismissal of the coercive acts and breach
of duty claims because the claims are not cognizable causes of action under federal
or state law. (Id. at 11–12.) Third, Defendants argue for dismissal of the breach of
contract, equal rights, and defamation claims because Pruitt has not alleged facts to
support the necessary elements of each claim. (Id. at 12–17.) Fourth, Defendants
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argue for dismissal of the equal protection claim because the Fourteenth
Amendment does not protect private actions by private actors. (Id. at 17–18.)
Finally, Defendants argue that the damages claim fails to identify the particular
damages sought and the whether they are recoverable under the causes of action
alleged. (Id. at 18.) The Court addresses each argument in turn.
A.
Title VII and Civil Rights Act of 1991 Claims
Defendants first argue for dismissal of Pruitt’s Title VII and Civil
Rights Act of 1991 claims because (1) the claims are time-barred; (2) Title VII
does not impose individual liability; and (3) Pruitt has failed to state any facts
supporting a prima facie case of discrimination, and particularly fails in alleging
any facts showing an adverse employment action. (Def. Mot. at 5–11.)
At the outset, the Court notes that the Civil Rights Act of 1991
amended the Civil Rights Act of 1964 to provide additional sources of remedy in
employment discrimination cases and to clarify disparate impact actions. See Civil
Rights Act of 1991, Pub. L. No. 102–166, § 2, 105 Stat. 1071, 1071 (1991). Based
on the allegations in the Petition, the Court construes Pruitt’s claims under the
Civil Rights Act of 1991 as disparate impact claims brought under Title VII.
Accordingly, the Court addresses Pruitt’s claims collectively as “Title VII claims.”
1.
Whether Pruitt’s Claims Are Time-Barred
Defendants first argue that Pruitt’s Title VII claims are time-barred
13
because she filed suit on July 21, 2014—six days outside the requisite ninety-day
window. (Def. Mot. at 6.) Pruitt contends that her petition was timely. (Dkt. # 7
at 4.)
Title VII’s statutory text requires any civil action to be brought within
ninety days of receipt of an EEOC notice of right to sue. 42 U.S.C.
§ 2000e–5(f)(1); see also Harris v. Boyd Tunica, Inc., 628 F.3d 237, 239 (5th Cir.
2010) (“Section 2000e–5(f)(1) requires a civil action be commenced within ninety
days after the plaintiff has received a right-to-sue notice from the EEOC.”). The
ninety-day period is strictly construed from the date of receipt. Taylor v. Books A
Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002). As a general rule, “the giving of
notice to the claimant at the address designated by him suffices to start the
ninety-day period.” Espinoza v. Mo. Pac. R. Co., 754 F.2d 1247, 1250 (5th Cir.
1985).
“When the date on which a right-to-sue letter was actually received is
either unknown or disputed, courts have presumed various receipt dates ranging
from three to seven days after the letter was mailed.” Taylor, 296 F.3d at 379.
However, the Fifth Circuit has never firmly decided the exact number of days for
the presumption of receipt of a right to sue letter. See Morgan v. Potter, 489 F.3d
195, 196 (5th Cir. 2007) (“The exact number of days is thus an open question in
this Circuit, but we have expressed satisfaction with a range between three and
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seven days.”).
This Court has exhaustively addressed the appropriate number of days
for presumption of receipt of a right-to-sue letter in Jenkins v. City of San Antonio
Fire Dep’t, 12 F. Supp. 3d 925, 934–939 (2014). In Jenkins, the plaintiff filed suit
ninety-six days after receiving the right-to-sue letter from the EEOC. Id. at 934.
After surveying case law from the Fifth Circuit and across the country, this Court
concluded that the appropriate presumption of receipt for a right-to-sue letter is
three days. Id. at 936.
Although the presumptive period is three days, the plaintiff can rebut
that presumption by providing “sworn testimony or other admissible evidence from
which it could reasonably be inferred either that the notice was mailed later than its
typewritten date or that it took longer than three days to reach her by
mail.” Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (5th Cir. 1996).
Moreover, because the Fifth Circuit treats the ninety-day period akin
to a statute of limitations, “the ninety-day filing requirement is [also] subject to
equitable tolling.” Harris, 628 F.3d at 239 (internal quotation marks omitted).
Equitable tolling is general available only in “rare and exceptional circumstances,”
typically where “the claimant has actively pursued [her] judicial remedies by filing
a defective pleading during the statutory period, or where [she] has been induced
or tricked by [her] adversary’s misconduct in allowing the filing deadline to
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pass.” Id.
The record establishes that the EEOC issued its right-to-sue letter on
April 16, 2014. (Pet., Ex. N.) Because the record does not establish the date that
Pruitt received the letter, and because Pruitt has not offered any evidence to rebut
the three-day presumptive period,4 the Court presumes a three-day presumption of
receipt. Accordingly, when Pruitt filed her petition on July 21, 2014, the
ninety-day limitations period had already run. Since Pruitt has not presented any
facts to suggest that equitable tolling would be appropriate in this case, the Court
finds that her Title VII claims are untimely. Accordingly, the Court GRANTS
Defendants’ Motion as to the Title VII claims.
2.
Whether Individual Defendants Are Liable
Even if Pruitt’s claims had not been time-barred, dismissal of Pruitt’s
Title VII claims is nevertheless warranted because they are improperly brought
against defendants in their individual capacities. (See Def. Mot. at 6–7.)
4
Pruitt supplies a calendar for April 2014, noting that the week of April 14 was a
“holiday week.” (Dkt. # 24 at 5.) As Defendants rightly note, there was no United
States Postal Service Holiday that week. (Dkt. # 27, Ex. 1.)
The only reference that Pruitt makes to address the presumption of
receipt is a note in her supplemental memorandum, which states “Notice of Suit
Rights- Mailed April 16, 2014, Received April 21 or 22.” (Dkt. # 24 at 2.) This is
insufficient to meet her burden. See Sherlock, 84 F.3d at 526 (requiring “sworn
testimony or other admissible evidence from which it could reasonably be inferred
either that the notice was mailed later than its typewritten date or that it took longer
than three days to reach her by mail”).
16
It is well-established that Title VII does not permit plaintiffs to
recover against individual employees; instead, Title VII only creates liability for
employers. 42 U.S.C. § 2000e–2(a)(1) (“It shall be an unlawful employment
practice for an employer . . . .”). Title VII defines the term employer to include
“any agent” of the employer, which the Fifth Circuit has interpreted to mean any
immediate supervisor delegated an employer’s traditional rights, such as hiring and
firing. 42 U.S.C. § 2000e(b); Harvey v. Blake, 913 F.2d 226, 227 (5th Cir. 1990).
It is also well-established in the Fifth Circuit that, despite this
definition, Title VII does not impose individual liability on employees. Indest v.
Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999) (citations omitted)
(noting that the purpose of the language is to incorporate respondeat superior
liability into Title VII). Rather, Title VII liability is only available against
employers and employees in their official capacities, as a suit against an employee
in his official capacity is effectively a suit against the employer. Harvey, 913 F.2d
at 227–28 (“Because [defendant’s] liability under Title VII is premised upon her
role as agent of the city, any recovery to be had must be against her in her official,
not her individual capacity”); see also Indest, 164 F.3d at 262 (“a Title VII suit
against an employee is actually a suit against the corporation.”). However, a
plaintiff cannot sue both an employer and an employee in his official capacity,
17
since such a posture would subject the company to double liability. 5 Indest, 164
F.3d at 262.
Here, Pruitt has not specified whether she filed suit against the named
employees in their individual or official capacities. Accordingly, the Court must
look to the “course of proceedings” to determine the type of liability that she
seeks. See Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (“In many cases,
the complaint will not clearly specify whether officials are sued personally, in their
official capacity, or both. ‘The course of proceedings’ in such cases typically will
indicate the nature of the liability sought to be imposed.”); accord United States ex
rel. Adrian v. Regents of Univ. of Cal., 363 F.3d 398, 402–03 (5th Cir. 2004).
Courts consider various factors in this inquiry, including the substance of the
complaint, the nature of relief sought, and statements in dispositive motions and
5
In support of their argument, Defendants cite to Ackel v. Nat’l Commc’ns, Inc.,
339 F.3d 376 (5th Cir. 2003). In Ackel, the Fifth Circuit commented in a footnote,
“Individuals are not liable under Title VII in either their individual or official
capacities.” Id. at 382 n.1. In support, the court cited to a case merely restating the
general rule that Title VII imposes no individual liability and that plaintiffs cannot
sue both an employer and its agent in an official capacity. Smith v. Amedisys Inc.,
298 F.3d 434, 448–49 (5th Cir. 2002).
The footnote at issue merely comments that the district court properly
dismissed the claims against the individuals originally named as defendants,
presumably because the plaintiff also sued the company under Title VII. See
Ackel, 339 F.3d at 382. Because Ackel does not indicate that it is overturning
existing precedent, and because dismissal of the individual defendants was proper
because the plaintiff had sued both the company and individual employees, this
Court interprets the footnote in Ackel to be dicta that does not change the rules set
out in Harvey.
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responses. See, e.g., Spease v. Cooper, No. 1:12-CV-371, 2014 WL 526142, at *5
(E.D. Tex. Feb. 4, 2014) (concluding that plaintiff brought claim against
defendants in their official capacities, where plaintiffs did not challenge that
characterization of their claims in the defendants’ motion to dismiss, where the
complaint only named individual employees in the section listing the defendants,
and where plaintiffs asserted the same claims against each of the
defendants); McPhail v. City of Jackson, No. 3:13-CV-146-HSO-RHW, 2014 WL
2819026, at *5 (S.D. Miss. June 23, 2014) (finding that plaintiff brought claims
against defendant in his individual capacity because the requested damages were
only available against officers in their individual capacities and because the briefs
were “replete with argument regarding qualified immunity,” which only applies to
individual capacity claims).
With regard to the present case, Pruitt has made no allegations in her
petition or in the referenced exhibits that any of the defendants she has named have
the authority to hire or fire her. Accordingly, there are no facts to show that the
defendants are the types of employees that Pruitt can hold liable in their official
capacity. Moreover, the course of proceedings more broadly suggests that Pruitt
has brought suit against the defendants individually. She individually lists each
defendant’s name in the Title VII and Civil Rights Act of 1991 sections of her
petition, and supports the claims against each defendant with particularized
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allegations pertaining to their specific behavior.
Because Pruitt cannot bring a Title VII claim against defendants in
their individual capacities, the claims warrant dismissal.6
6
The Court notes that, even if the Court construed Pruitt’s claims as official
capacity claims, effectively bringing suit against South Texas Regional Medical
Center, Pruitt’s Title VII claims would nevertheless fail because she fails to allege
facts supportive of a prima facie case of disparate treatment, disparate impact, or
harassment.
“To succeed on a claim of intentional discrimination under Title
VII . . . or Section 1981, a plaintiff must first prove a prima facie case of
discrimination. Generally, a plaintiff proves a prima facie case through a
four-element test that allows an inference of discrimination[,] [b]ut a prima facie
case can also be proven by direct evidence of discriminatory motive.” Wallace v.
Tex. Tech Univ., 80 F.3d 1042, 1047–48 (5th Cir. 1996) (internal citations
omitted); see also Wesley v. Gen. Drivers, Warehousemen and Helpers Local 745,
660 F.3d 211, 213 (5th Cir. 2011) (quoting Lee v. Kan. City S. Ry. Co., 574 F.3d
253, 259 (5th Cir. 2009)) (requiring a showing that (1) [plaintiff] is a member of a
protected class, (2) [s]he was qualified for the position at issue, (3) [s]he was the
subject of an adverse employment action, and (4) [s]he was treated less favorably
because of [her] membership in that protected class than were other similarly
situated employees who were not members of the protected class, under nearly
identical circumstances.”). Pruitt has presented no allegations that would show
direct evidence of discriminatory motive, nor has she made out her prima facie
case under the circumstantial evidence test. Most critically, she fails to identify an
adverse employment action: there are no allegations that she has experienced an
employment action that affected her job duties, compensation or benefits. See
Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014).
A harassment claim under Title VII is more commonly known as a
hostile work environment claim, which requires a showing that the plaintiff
“(1) belongs to a protected group; (2) was subjected to unwelcome harassment;
(3) the harassment complained of was based on [the protected characteristic];
(4) the harassment complained of affected a term condition, or privilege of
employment; [and] (5) the employer knew or should have known of the harassment
in question and failed to take prompt remedial action.” Royal v. CCC & R Tres
Arboles, L.L.C., 736 F.3d 396, 401 (5th Cir. 2013) (citing Hernandez v. Yellow
20
B.
Equal Rights and Equal Protection Claims
Next, Defendants contend that Pruitt’s equal rights claim against
Breiner should be dismissed because she fails to state a claim under 42 U.S.C.
§ 1981. (Def. Mot. at 13–14.) In her petition, Pruitt alleges that Breiner
“demonstrated a violation of equal rights by . . . placing a less qualified male in a
position [Pruitt] signed a contract for.” (Pet. at 6.)
Defendants also contend that Pruitt’s equal protection claim against
South Texas Regional Medical Center should be dismissed because the Fourteenth
Amendment only protects against state action and the hospital is a private
corporation. (Def. Mot. at 17.) In her petition, Pruitt alleges that South Texas
Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012)). Pruitt has presented no facts
alleging that the harassment was based on her race or gender; her broad allegation
that the harassment is due to her “being the only African American female and
being the only Registered Nurse” is insufficient to meet her burden. See Iqbal, 556
U.S. at 678 (“Threadbare recitals of a cause of action, supported by mere
conclusory statements, do not suffice.”).
Finally, “[t]o establish a prima facie case of discrimination under a
disparate-impact theory, a plaintiff must show: (1) an identifiable, facially neutral
personnel policy or practice; (2) a disparate effect on members of a protected class;
and (3) a causal connection between the two.” McClain v. Lufkin Indus., Inc., 519
F.3d 264, 275 (5th Cir. 2008). In general, a prima facie case of disparate-impact
liability requires “a threshold showing of a significant statistical disparity, and
nothing more.” Ricci v. DeStefano, 557 U.S. 557, 587 (2009). The facts alleged
in Pruitt’s petition and incorporated exhibits do not identify any facially neutral
employment practice that disparately impacts females or African-Americans, nor
do they show any significant statistical disparity between disciplinary policies as
applied to members of either protected class. Accordingly, Pruitt does not allege
sufficient facts to support a disparate-impact claim under Title VII.
21
Regional Medical Center failed to provide her equal protection by “employing
managers, directors and chief nursing officers who have been shown to
consistently violate this Amendment.” (Pet. at 7.)
Generally, violations of “equal rights” find legal remedy in 42 U.S.C.
§ 1981, which provides that “[a]ll persons within the jurisdiction of the United
States shall have the same right in every State and Territory . . . as is enjoyed by
white citizens.” However, since Pruitt’s allegations supporting this claim arise
from her gender, her claims are not cognizable under § 1981. Bobo v. ITT, Cont’l
Baking Co., 662 F.2d 340, 344–45 (5th Cir. 1981). Nor can Pruitt’s claims
succeed under the Equal Protection Clause of the Fourteenth Amendment. The
Equal Protection Clause only protects against state action, e.g., Burton v.
Wilmington Parking Auth., 365 U.S. 715, 721–22 (1961), and South Texas
Regional Medical Center is a privately held corporation (Dkt. # 2 at 1).
Instead, the appropriate remedy for discrimination in the employment
context is Title VII. However, for the reasons discussed in footnote 6, Pruitt has
failed to allege sufficient facts in her petition and supporting documents to support
the prima facie elements of a Title VII claim. Accordingly, the Court GRANTS
Defendants’ Motion as it pertains to Pruitt’s equal rights and equal protection
claims.
22
C.
Coercive Acts Claim
Next, Defendants contend that dismissal of Pruitt’s “coercive acts”
claim is warranted because there is no such cause of action under federal or state
law. In her petition, Pruitt alleges that Breiner “demonstrated coercive acts by”
asking her “to sign a disciplinary action notice that was a false statement.” (Pet. at
5.)
The Court is unable to locate any source in federal or state law for a
claim based on “coercive acts,” nor does Pruitt identify one. Accordingly, the
Court GRANTS Defendants’ Motion as to the coercive acts claim.
D.
Breach of Duty Claims
Defendants next argue that Pruitt’s breach of duty claim warrants
dismissal because there is no such cause of action under federal or state law. (Def.
Mot. at 12.) Pruitt’s petition alleges that Breiner breached her duty by asking
Pruitt to sign a disciplinary notice that was a false statement and by skipping steps
in the disciplinary process. (Pet. at 5.) She also alleges that Farrow and Hickok
breached their duties by not honoring Pruitt’s request for a new director until
weeks after Pruitt made the request. (Id.)
To the extent that Pruitt alleges a claim of breach of fiduciary duty,
her claim cannot succeed. To make out a breach of fiduciary duty claim under
Texas law, a plaintiff must show that “(1) a fiduciary relationship existed between
23
the plaintiff and defendant; (2) the defendant breached its fiduciary duty to the
plaintiff; and (3) the defendant’s breach resulted in injury to the plaintiff or benefit
to the defendant.” Homoki v. Conversion Servs., Inc., 717 F.3d 388, 402–03 (5th
Cir. 2013). Although employees may have a fiduciary duty to their employers in
limited circumstances, “employers generally do not owe fiduciary duties to their
employees.” Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 283 (5th Cir.
2007); Meadows v. Hartford Life Ins. Co., 492 F.3d 634, 640 (5th Cir. 2007). The
Court can find no authority suggesting that the duties that Pruitt identifies are
cognizable under Texas law as fiduciary duties.
Similarly, to the extent that Pruitt’s breach of duty claims are general
claims of negligence, her allegations are insufficient. To bring a negligence claim
under Texas law, a plaintiff must show (1) a legal duty, (2) a breach of that duty,
and (3) damages proximately resulting from the breach. Ramirez v. Colonia
Freight Warehouse Co., Inc., 434 S.W.3d 244, 249 (Tex. App.—Hous. [1st ]
2014). “Whether a legal duty exists under a set of facts is a question of law. In
determining whether to impose a duty, th[e] Court must consider the risk,
foreseeability, and likelihood of injury weighed against the social utility of the
actor’s conduct, the magnitude of the burden of guarding against the injury and the
consequences of placing that burden on the actor.” Bird v. W.C.W., 868 S.W.2d
767, 769 (Tex. 1994).
24
The Court is unaware of and has been unable to locate any legal
support for the duties that Pruitt identifies. Nor is the Court willing to consider
whether such duties exist independently in the absence of any clear injury
identified by Pruitt. Accordingly, the Court GRANTS Defendants’ Motion as
pertaining to her breach of duty claims.
E.
Breach of Contract Claims
Defendants next contend that Pruitt’s breach of contract claims are
insufficient, as she fails to demonstrate her prima facie case. (Def. Mot. at 12–13.)
To establish breach of contract under Texas law, a plaintiff must show: “(1) the
existence of a valid contract; (2) performance or tendered performance by the
plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by
the plaintiff as a result of the breach.” Smith Int’l, Inc. v. Egle Grp., LLC, 490
F.3d 380, 387 (5th Cir. 2007).
The Court agrees with Defendants that Pruitt has failed to allege any
facts that identify a valid contract between herself, Breiner, Hickok, and Farrow.
Accordingly, the Court cannot determine what facts, if any, show a breach of terms
of the contract. The Court therefore GRANTS Defendants’ motion as pertaining
to the breach of contract claims.
F.
Defamation of Character–Slander Claim
Finally, Defendants contend that dismissal of Pruitt’s “defamation of
25
character–slander” claim is warranted because she failed to allege facts supporting
a prima facie case of defamation and, regardless, a qualified privilege protects
Guzman from liability. (Def. Mot. at 14–17.)
“To prevail on a defamation claim, the plaintiff must prove that the
defendant (1) published a statement, (2) that was defamatory concerning the
plaintiff, (3) while acting with . . . negligence, if the plaintiff is a private individual,
regarding the truth of the statement.” In re Lipsky, 411 S.W.3d 530, 543 (Tex.
App.—Ft. Worth 2013). In her petition, Pruitt alleges that Guzman committed
slander by making a false statement damaging to Pruitt’s reputation. (Pet. at 6.)
Pruitt alleges that, on December 4, 2014, Guzman noticed that “the pulses were not
marked” for a particular patient following a cardiac catherization procedure, at
which point Pruitt apologized to Guzman and stated that, because of the difficult
morning, “marking the pulses had gotten past” her. (Id., Ex. I at 4.) The next day,
Pruitt alleges that Guzman falsely stated and yelled to Blalock that Pruitt “did not
check the pulses” of a patient on the day before. (Id.)
1.
Publication
Publication occurs when the maker of the statement discloses the
statement to a third party. Doe v. SmithKline Beecham Corp., 855 S.W.2d 248,
259 (Tex. App.—Austin 1993). Here, Pruitt alleges that Guzman disclosed the
defamatory statement about Pruitt to Blalock in front of another patient. Because
26
Blalock and the patient were third parties, Pruitt has alleged facts sufficient to
support the publication element of the defamation claim.
2.
Whether Statement Was Defamatory
“A statement is defamatory ‘if it tends to injure a person’s reputation
and thereby expose the person to public hatred, contempt, ridicule, or financial
injury or to impeach any person’s honesty, integrity, virtue, or reputation.’” In re
Lipsky, 411 S.W.3d at 543. “As statement may be defamatory, although literally
true, if the omission of material facts allows a reasonable person to perceive a false
impression.” Id. at 544.
Pruitt states that the allegedly false statements made her feel
“ineffective and incompetent in front of the patient and in front of [her] new
director Shanna Blalock.” (Pet., Ex. I at 4.) These facts are sufficient to allege that
the statement tended to injure Pruitt’s reputation and to impeach her reputation as a
health care provider. Accordingly, Pruitt has alleged sufficient facts to support the
defamatory element of the defamation claim.
3.
Whether Statement Was Negligent
To show that the statement was negligent, the plaintiff must show that
“the defendant should have known that the published statement was false.” In re
Lipsky, 411 S.W.3d at 543. It is here that Pruitt’s allegations fall short. Her
factual allegations are unclear as to whether she checked the pulse and failed to
27
mark it, or whether she failed to check and mark the pulse. For that reason, Pruitt
fails to allege how Guzman would have known that her statement was false.
Because Pruitt fails to allege facts to support the third element of the defamation
claim, the Court GRANTS Defendants’ Motion with respect to the defamation
claim. 7
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ Motion to
Dismiss (Dkt. # 4). Additionally, the Court DENIES Pruitt’s First Motion, which
it construes as a Motion to Remand (Dkt. # 7). Finally, the Court DENIES Pruitt’s
Second Motion (Dkt. # 10.) Accordingly, Pruitt’s claims are DISMISSED
WITHOUT PREJUDICE.
IT IS SO ORDERED.
DATED: San Antonio, Texas, January 29, 2015.
_____________________________________
David Alan Ezra
Senior United States Distict Judge
7
Because there are no outstanding claims, the Court does not address Defendants’
argument that Pruitt fails to state a claim for damages because she fails to identify
the damages sought and whether they are recoverable under the causes of action
alleged. (Def. Mot. at 18.) However, the Court notes that if Pruitt chooses to refile
her case in federal or state court, Pruitt should provide a more definite statement
about the damages so that the Court can determine the type of damages that she
seeks.
28
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