Breazell v. Permian Trucking & Hot Shot, LLC
ORDER GRANTING IN PART AND DENYING IN PART 19 Motion for Default Judgment. An evidentiary hearing shall be held to determine the appropriate amount of damages. Until the hearing, a decision on the amount of damages is DEFERRED. Signed by Judge Xavier Rodriguez. (lg1)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
PERMIAN TRUCKING & HOT SHOT,
LLC d/b/a WILBANKS ENERGY
Civil Action No: 7:15-CV-199-XR
On this date, the Court considered Plaintiff’s Motion for Default Judgment. (Docket no.
19). After careful consideration, the Court GRANTS the motion on Plaintiff’s Title VII
discrimination and retaliation claims, DENIES the motion on the ADA and IIED claims, and
DEFERS a decision on the amount of damages pending an evidentiary hearing.
Factual History 1
In April 2014, Defendant Permian Trucking & Hot Shot, LLC hired Plaintiff Michael
Breazell. About a month later, Plaintiff was involved in a car accident that resulted in the fatality
of the other driver. Plaintiff alleges that after the accident, Defendant assured him that it would
“take care” of his medical needs privately and that he need not file a worker’s compensation
claim. Defendant allegedly took Plaintiff’s prescription to have it filled for him and delivered the
medical to him a week later. This delay in delivering the prescription “caused additional
unnecessary physical and emotional pain and suffering by Plaintiff.” Plaintiff alleges that after
The factual allegations set forth in this order are taken from Plaintiff’s complaint. Docket no. 1.
several unsuccessful requests for Defendant to provide further medical attention, he was “forced
to used his military benefits through the Veterans Affairs Hospital in El Paso, Texas.”
Somewhat independently from the car accident and unfulfilled medical treatment,
Plaintiff makes allegations related to how he was treated during his employment with Defendant.
Plaintiff states that he timely filed a charge of discrimination with the EEOC, obtained a right-tosue letter, and timely filed this complaint after receiving the letter. The charge of discrimination
relates to an HR complaint that Plaintiff initiated after a fellow employee made a comment
including the word “nigger.” The other employee was eventually terminated, and Plaintiff alleges
that other managers and co-workers retaliated, harassed, and discriminated against him. He
alleges that his work assignments were limited, tasks suitable for him were assigned to
employees of other races, he was forced to arrive at work early despite the unavailability of a
vehicle that would allow him to perform his duties, and his requests to repair his company
vehicle were ignored. He further alleges that Defendant told him that Defendant wanted to make
“[his] and his family[’s] life feel ‘like hell.’”
Plaintiff claims to have suffered damages as a result of both “Defendant’s failure to
timely provide . . . adequate medical care” and also as a result of “Defendant’s unlawful
employment practices of race and color discrimination and disability discrimination.” Docket no.
19 at 1. He asserts causes of action for discrimination and retaliation under Title VII, violations
of the ADA, and intentional infliction of emotional distress under Texas law.
On November 20, 2015, Plaintiff filed his Original Complaint. Docket no. 1. Summons
was issued and Plaintiff filed a return of service indicating that Defendant was served on March
8, 2016. Docket no. 10. Defendant failed to answer or otherwise respond. On May 19, 2016,
Judge Robert A. Junell ordered that the clerk enter default, and the clerk did so four days later.
Docket nos. 14, 15. The case was then transferred to the docket of the undersigned judge. Docket
On August 1, 2016, this Court ordered Plaintiff to file a Motion for Default Judgment, or
seek leave for an extension of time to do so, by August 22. Docket no. 17. Plaintiff was expressly
warned that failure to comply with this order would result in dismissal of this lawsuit. Id. By
August 31, the deadline had expired and Plaintiff had not moved for entry of Default Judgment,
so the Court ordered Plaintiff to show cause by September 21 as to why his lawsuit should not be
dismissed for lack of prosecution. Docket no. 18. On September 22, Plaintiff filed both his
response to the Order to Show Cause and his Motion for Default Judgment. Docket nos. 19, 20.
Now before the Court is the Plaintiff’s Motion for Default Judgment. Docket no. 19.
STANDARD OF REVIEW
“After defendant’s default has been entered, plaintiff may apply for a judgment based on
such default.” New York Life Ins. v. Brown, 84 F.3d 137, 140 (5th Cir. 1996). Rule 55(a)
provides that a default judgment is proper when a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend. FED. R. CIV. P. 55(a). “A party is not
entitled to a default judgment as a matter of right, even where the defendant is technically in
default.” Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996). “[I]n considering any motion for
default judgment, a court must examine jurisdiction, liability, and damages.” Labaty v. UWT,
Inc., No. SA-13-CV-389-XR, 2016 WL 1737145, at *1 (W.D. Tex May 2, 2016).
The Court has federal question jurisdiction over the ADA and Title VII claims. 28 U.S.C.
§ 1331; 42 U.S.C. §§ 12101 et. seq.; 42 U.S.C. §§ 2000(e) et. seq. The Court has supplemental
jurisdiction over Plaintiff’s state law IIED claim pursuant to 28 U.S.C. § 1367(a). The Court has
personal jurisdiction over Defendant because Defendant is an LLC doing business within this
district. See Rabin v. McClain, 881 F. Supp. 2d 758, 764–66 (W.D. Tex. 2012) (exercising
personal jurisdiction over non-resident defendants with sufficient contacts in the forum state).
Defendant may be served by serving CT Corporation System—Defendant’s agent
authorized to accept service in the state of Texas. See FED. R. CIV. P. 4(h). Pursuant to Federal
Rules, the plaintiff must serve the summons and complaint on the defendant within 120 days
after the filing of the complaint. See FED. R. CIV. P. 4(m). 2 Here, Plaintiff filed suit on November
20, 2015. Docket no. 1. On March 8, 2016, Plaintiff served a copy of the summons and
complaint on CT Corporation System—the process specialist designated to accept service on
Defendant’s behalf. Docket no. 11; FED. R. CIV. P. 4(h). Therefore, Defendant was properly
served, and the Court has subject matter jurisdiction over the case and personal jurisdiction over
“The defendant, by his default, admits the plaintiff’s well-pleaded allegations of fact, is
concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus
established.” Jackson v. FIE Corp., 302 F.3d 515, 524 (5th Cir. 2002) (quoting Nishimatsu
Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). Although the
FED. R. CIV. P. 4(m) was recently amended—effective December 1, 2015, the 120-day time period was
reduced to 90 days after the filing of the complaint. In this case, however, the relevant time period is 120 days
because of when Plaintiff filed his complaint.
Court must accept the plaintiff’s well-pleaded facts as true, a defendant’s default does not
warrant the entry of default judgment unless the Court finds a “sufficient basis in the pleadings
for the judgment entered.” Nishimatsu Constr. Co., Ltd., 515 F.2d at 1206 (“The defendant is
not held to admit facts that are not well-pleaded or to admit conclusions of law.”); Wright &
Miller, FED. PRAC. & PRO. § 2688 (“Even after default, however, it remains for the court to
consider whether the unchallenged facts constitute a legitimate cause of action, since a party in
default does not admit mere conclusions of law.”).
Thus, prior to a default judgment for damages, “the district court must ensure that the
well-pleaded allegations in the complaint, which are taken as true due to the default, actually
state a substantive cause of action and that there is a substantive, sufficient basis in the pleadings
for the particular relief sought.” Tyco Fire & Sec., LLC v. Alcocer, 218 F. App’x 860, 863 (11th
Cir. 2007). In determining whether the pleadings present a sufficient basis for Plaintiff’s claim
for relief, “the Fifth Circuit has looked to the Rule 8 case law for guidance[.]’” J & J Sports
Productions, Inc. v. Morelia Mexican Restaurant, Inc., 126 F. Supp.3d 809, 815 (N.D. Tex.
2015). “Federal Rule of Civil Procedure 8(a)(2) requires only a ‘short and plain statement of the
claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. (1957)); see also FED. R. CIV. P. 8(a)(2).
a. Title VII Discrimination and Retaliation Claims
“Title VII of the Civil Rights Act of 1964, as amended, 42 § U.S.C. 2000(e) et. seq.,
prohibits discrimination on the basis of race, color, religion, sex, or national origin in federal and
private employment.” Fitzgerald v. Secretary, U.S. Dept. of Veterans Affairs, 121 F.3d 203, 206
(5th Cir. 1997). Title VII makes it “unlawful for an employer to ‘discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment.’”
Young v. City of Houston, Tex., 906 F.2d 177, 180 (5th Cir. 1990). To bring a Title VII claim, a
plaintiff alleging unlawful employment practices must file a charge of discrimination with the
EEOC within 180 days after the alleged unlawful employment practice occurred, but “[i]n a
‘deferral state’ such as Texas, the charge must be filed within 300 days.” 42 U.S.C. § 2000e–
5(e)(1); Simotas v. Kelsey-Seybold, 211 F. App’x 273, 275 (5th Cir. 2006). After making the
charge, a plaintiff must receive a right to sue letter from the EEOC, and file suit within 90 days
of receiving this letter. 42 U.S.C. § 2000e–5(f)(1). Although not a jurisdictional prerequisite,
receipt of this letter “is a condition precedent to a Title VII claim.” Pinkard v. Pullman-Standard,
a Div. of Pullman, Inc., 678 F.2d 1211, 1215 (5th Cir. 1982). Plaintiff’s Complaint states that he
filed a charge with the EEOC within 300 days of the alleged unlawful practice, received a right
to sue letter, and filed this suit within the 90 days of receiving the letter, thereby satisfying all
conditions precedent to suit. 3 Docket no. 1 at 2.
“The complainant in a Title VII trial must carry the initial burden . . . of establishing a
prima facie case of racial discrimination.” McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–804 (1973). To do so, a plaintiff must show “(1) he was a member of a protected class; (2)
he was qualified for his position; (3) an adverse employment action was suffered; and (4) other
similarly situated employees were treated more favorably.” Martinez v. Bohls Bearing
Equipment Co., 361 F.Supp.2d 608, 614–15 (W.D. Tex. 2005) (citing Bryan v. McKinsey & Co.,
375 F.3d 358 (5th Cir. 2004). To state a claim for retaliation under Title VII, a plaintiff must
Plaintiff’s complaint does not provide the specific dates on which he filed his EEOC charge or obtained
his right to sue letter, nor does it attach the letter itself. See Docket no. 1 at 2. Nevertheless, the complaint
adequately alleges compliance with the condition precedent of receiving a right to sue letter. FED. R. CIV. P. 9(c)
(“In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been
performed. But when denying that a condition precedent has occurred or been performed, a party must do so with
particularity”); Hildebrand v. Allegheny Cty., 757 F.3d 99, 112 (3d Cir. 2014) (holding that pleading standards for
receipt of a right to sue letter are governed by Rule 9(c)’s standard for conditions precedent and are not altered by
Iqbal and Twombly, which interpreted Rule 8(a)).
show “(1) that [he] engaged in activity protected by Title VII, (2) that an adverse employment
action occurred, and (3) that a causal link existed between the protected activity and the adverse
action.” Brandon v. Sage Corp., 808 F.3d 266, 270 (5th Cir. 2015).
Plaintiff claims he is both a “person” and a member of a “protected class” within the
meaning of Title VII and that Defendant is an “employer” within the meaning of the ADA and
Title VII. Docket no. 1 at 2–3. Plaintiff alleges that during his employment, Plaintiff initiated a
complaint with HR about a racial slur made by a fellow employee who was ultimately terminated
but who was friends with other employees and managers. Consequently, Plaintiff alleges that he
was harassed and discriminated against by co-workers and managers in retaliation for reporting
the discriminatory remark. Moreover, Plaintiff alleges that Defendant limited his work
assignments, assigned his work duties to co-workers of other races, and took other actions
against him that were intended “to make [his] and his family[’s] life feel ‘like hell.’” Plaintiff
states that Defendant discriminated against him “in connection with the compensation, terms,
conditions and privileges of employment or limited, segregated or classified [him] in a manner
that would deprive . . . him or any employment opportunity or adversely affect his status because
of [his] race and color in violation of [Title VII].” Docket no. 1 at 5.
These allegations, taken as true due to Defendant’s default, provide a sufficient basis for
providing relief on his Title VII discrimination and retaliation claims. Accordingly, the Court
grants default judgment on these claims.
b. ADA Claim
The ADA prohibits discrimination in employment against qualified persons with a
disability. “To establish a prima facia discrimination claim under the ADA, [Plaintiff] must
show that [he] was disabled, was qualified for the job, and was the subject of an adverse
employment action because of [his] disability.” Dupre v. Charter Behavioral Health Systems of
Lafayette Inc., 242 F.3d 610, 613 (5th Cir. 2001) (citing Zenor v. El Paso Healthcare System,
Ltd., 176 F.3d 847, 851 (5th Cir. 1999)). “‘Disability’ as used in the ADA means: ‘(A) a physical
or mental impairment that substantially limits one or more of the major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having such an
impairment.’” Id. (citing 42 U.S.C. § 12102(2)).
“Substantially limits” and “major life activity” are not defined by the ADA,
but the “EEOC has promulgated regulations under the ADA that define those terms.” Dupre, 242
F.3d at 614. “Substantial impairment” depends on a few things: “(1) the nature and severity of
the impairment, (2) its duration or expected duration, (3) and its permanent or expected
permanent or long-term impact.” Id. Plaintiff’s complaint merely states that Defendant caused
him “unnecessary physical and emotional pain and suffering” without explaining how this pain
and suffering substantially impaired a major life activity. Docket no. 1 at 3. Plaintiff neither
provides evidence of a “record” of impairment under the ADA nor facts showing that he was
“regarded as” disabled by his employer. See Dupre, 242 F.3d at 615 (citing McInnis v. Alamo
Community College District, 207 F.3d 276, 281 (5th Cir. 2000)). Accordingly, Plaintiff has not
alleged that he is disabled under the ADA, and the Court denies his motion for default judgment
on this claim.
c. IIED Claim
To recover on a claim of intentional infliction of emotional distress in Texas, a plaintiff
must prove that the defendant “(1) acted intentionally or recklessly (2) in an extreme and
outrageous manner (3) that caused him to suffer emotional distress (4) that was severe.” Von
Beck-Lutes v. Arning, 484 F. Supp. 2d 585, 588 (W.D. Tex. 2007) (citing Weller v. Citation Oil
& Gas Corp., 84 F.3d 191, 195 (5th Cir. 1996)). Plaintiff alleges that Defendant “intentionally or
recklessly committed Intentional Infliction of Emotional Distress . . . by denying Plaintiff his
medical prescription after a fatally serious vehicle accident” and that Defendant’s “mission was
to ruin Plaintiff and make sure [he and his] family’s life ‘feels like hell.’” Docket no. 1 at 6.
The determination of whether the conduct is “outrageous enough to permit recovery is a
matter within the province of the court.” Von Beck-Lutes, 484 F.Supp.2d at 588 (citing Atkinson
v. Denton Publishing Co., 84 F.3d 144, 151 (5th Cir. 1996)). Conduct is “outrageous” only if it is
“so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as so atrocious, and utterly intolerable in a civilized community.”
Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993).
Plaintiff’s claim of intentional infliction of emotional distress fails because Defendant’s
behavior is not “outrageous” under Texas law. Ordinary employment disputes, such as this one,
generally cannot support an IIED claim, and it takes far more for conduct to be outrageous in this
context. Wilson v. Monarch Paper Co., 939 F.2d 1138, 1144–46 (5th Cir. 1991). In Dean v. Ford
Motor Credit Co., 885 F.2d 300, 307 (5th Cir. 1989), for example, the distinguishing action that
turned a number of ordinary instances of unfair employment treatment into sufficiently
outrageous conduct was a supervisor’s intentional placement of forged checks into the plaintiff’s
purse to make it appear that the plaintiff was a thief. Plaintiff makes no allegations nearing the
conduct in Dean, and at bottom, this is an ordinary employment dispute that cannot also support
an IIED claim; were it otherwise, “all federal court discrimination lawsuits [would] be
accompanied by pendent state law claims for emotional distress.” Monarch Paper Co., 939 F.2d
at 1144. Accordingly, the Court denies Plaintiff’s motion with respect to his IIED claim.
“A default judgment is a judgment on the merits that conclusively establishes the
defendant’s liability. But it does not establish the amount of damages.” United States v. Shipco
Gen. Inc., 814 F.2d 1011, 1014 (5th Cir. 1987). Damages awarded in a default judgment “must
not differ in kind from, or exceed in amount, what is demanded in the pleadings.” FED. R. CIV. P.
54(c). Plaintiff’s complaint lists several types of damages and does not specify any dollar
amounts. Docket no. 1 at 7–8. Plaintiff’s Motion for Default Judgment includes a shorter list of
damages, and also includes dollar amounts next to each type. Docket no. 19 at 2. Because no
monetary values accompanied the requested damages in the complaint, the amounts included in
Plaintiff’s motion for default judgment do not “exceed in amount [those] demanded in the
pleadings.” FED. R. CIV. P. 54(c). Moreover, the list of damages in Plaintiff’s motion includes the
same types contained in the complaint.
Usually, damages must be proven by a hearing, or a demonstration of detailed affidavits
establishing the necessary facts, but “[i]f the amount of damages can be determined with
mathematical calculation by reference to the pleadings and supporting documents, a hearing is
unnecessary.” J & J Sports Productions, Inc. v. Morelia Mexican Restaurant Inc., 126 F. Supp.
3d 809, 816 (N.D. Tex. 2015) (citing James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993)). “A
hearing is not necessary . . . if the court finds within its discretion that it can rely on detailed
affidavits and other documentary evidence to determine whether to grant a default judgment.”
Johnson v. Sun Life & Health Ins. Co., No. SA-11-CV-203-XR, 2011 WL 1770678, at *1 (W.D.
Tex. May 9, 2011).
Plaintiff has not presented any evidence or affidavits; the only dollar amounts that he
provides are those listed in his motion. Therefore, an evidentiary hearing is necessary to
determine the damages to which Plaintiff is entitled on his Title VII claims. See FED. R. CIV. P.
55(b)(2)(B); Labaty v. UWT, Inc., No. SA-13-CV-389-XR, 2016 WL 1737145, at *2 (W.D. Tex.
May 2, 2016) (“As a general rule, in the context of default judgment, unliquidated damages
normally are not awarded without an evidentiary hearing.”). Plaintiff is to communicate with the
Court regarding the proposed length and date for the hearing.
For the foregoing reasons, Plaintiff’s Motion for Default Judgment (Docket no. 19) is
GRANTED in part as to his Title VII discrimination and retaliation claims and DENIED in part
as to his ADA and IIED claims. An evidentiary hearing shall be held to determine the
appropriate amount of damages. Plaintiff is to communicate with the Court’s courtroom deputy,
Becky Greenup (available at 210-472-6550, ext. 5011) regarding the proposed length of the
hearing and proposed dates for the hearing. Until the hearing, a decision on the amount of
damages is DEFERRED.
It is so ORDERED.
SIGNED this 4th day of January, 2017.
UNITED STATES DISTRICT JUDGE
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