Campos v. Ins. & Bonds Agency of Tex., LLC
| Decision Date | 28 January 2013 |
| Docket Number | CV. NO. SA-12-CV-00799-DAE |
| Parties | MONICA CAMPOS, Plaintiff, v. INSURANCE & BONDS AGENCY OF TEXAS, LLC, D/B/A IBTX RISK MANAGEMENT SERVICES, Defendant. |
| Court | U.S. District Court — Western District of Texas |
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.)
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 publiclycriticized 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 hedid 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" associatedwith 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 beendiscriminated 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.)
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.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).
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) ). 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).
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) (...
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