Frausto v. Sw. Airlines

• Decision Date: 26 June 2020
• Docket Number: Civil Action H-19-4718
• Parties: Samuel Frausto, Plaintiff, v. Southwest Airlines, Defendant.
• Court: U.S. District Court — Southern District of Texas

Samuel Frausto, Plaintiff, v. Southwest Airlines, Defendant.

Civil Action H-19-4718

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS

June 26, 2020

Memorandum and Recommendation

Plaintiff Samuel Frausto sued Defendant Southwest Airlines (Southwest) under state and federal civil rights statutes. He alleges that Southwest selectively enforced its disciplinary procedures against Hispanic employees. (D.E. 1.) Frausto filed an amended complaint. (D.E. 23.) Southwest moved to dismiss the amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (D.E. 24.) The court recommends that Southwest's motion to dismiss be granted in part and denied in part.

1. Background

A. Frausto's employment with Southwest

Frausto has worked in Southwest's provisional department in Houston since September 2001. Am. Compl. ¶ 11. He is still employed with Southwest in the same department. He is represented by the Transport Workers Union of America—CIO Local 555. (D.E. 24-1 at 5.)

The Collective Bargaining Agreement (CBA) between CIO Local 555 and Southwest includes procedures governing employee discharge and discipline. (D.E. 24-1 at 15.) For example, the CBA mandates that any covered employee subject to discipline involving loss of pay or discharge must first have the benefit of a fact-finding hearing with union representation. Id. at 16.

In March of 2013, Frausto began reporting harassment and discrimination to Southwest's human resources department (HR). Am. Compl. ¶ 14. On June 10, 2015, Frausto filed a complaint of discrimination and retaliation with HR, after his supervisor issued him written discipline for going home sick during mandatory overtime. Am. Compl. ¶ 19. On the same day, he participated in a disciplinary meeting with his supervisor. Id. ¶ 21. Frausto received another written discipline on June 22, 2015, in the form of a Letter of Instruction and a Discussion Log, for displaying an "unbecoming" attitude during the disciplinary meeting. Id. Frausto filed a complaint with HR, alleging that:

[Frausto] continue[s] to be discriminated [against] based on his RACE/ETHNICITY/Color of [his] skin. Non-minority whites have not been subjected to the same attendance and disciplinary procedures for going home sick on mandatory overtime . . . [Frausto is] being retaliated against by local management for having reported discrimination to [the HR department] in Dallas . . . [Frausto requests] a full investigation and referral to the EEOC.

Am. Compl. ¶ 22 (emphasis in original).

Frausto alleges that these events occurred despite his accumulation of more overtime hours than any other employee between March 2010 and December 2015. Am. Compl. ¶ 26. He alleges that out of nine employees who went home sick during their mandatory overtime shifts in 2015, Southwest issued written discipline only against Frausto and another Hispanic employee. Am. Compl. ¶ 24. A Caucasian employee reported sick every Sunday but he was never disciplined or required to participate in a fact-finding hearing. Id. ¶ 25.

Frausto alleges that his complaints led to harassment and retaliation. Am. Compl. ¶ 28. He alleges that he was forced to work excessive hours in early 2017. Am. Compl. ¶ 29. Around the same time, Frausto alleges that a Southwest manager physically assaulted him, but went unpunished. Id. ¶ 29. After Frausto filed a complaintwith HR about the assault, Frausto was instructed to attend another fact-finding hearing. Id. ¶ 30.

Frausto does not allege he was fired, demoted or that the terms or conditions of his employment were in any way altered. Again, he remains employed at Southwest.

B. The 2018 lawsuit

Frausto filed a related federal suit against Southwest in 2018. (Case no. 4:18-cv-00272.) His amended complaint, filed on March 7, 2018, raised claims of race discrimination under Title VII of the Civil Rights Act of 1964 (Title VII),¹ 42 U.S.C. § 1981 (Section 1981), and the Texas Commission on Human Rights Act (TCHRA).² (D.E. 8 at ¶¶ 6-8, 30-42, Case no. 4:18-cv-00272.) He also raised Texas common law claims of negligent training, supervision, and retention. Id. at ¶¶ 9, 43-47. Frausto alleged that Southwest enforced its attendance policies in a discriminatory manner. Id. at ¶¶ 12-26. He also alleged that he was assaulted by a member of management and was forced to work long hours, which led him to file an internal complaint. Id. at ¶ 28. Frausto alleged that Southwest retaliated against him for filing the internal complaint. Id. at ¶ 29.

Frausto alleged that he exhausted his Title VII and TCHRA claims by filing a dual Charge of Discrimination (Charge No. 460-2016-00727) with the U.S. Equal Employment Opportunity Commission (EEOC) and the Texas Workforce Commission (TWC) on December 1, 2015, and receiving a notice of right to sue on November 1, 2017. (D.E. 8 at ¶ IV.10, Case no. 4:18-cv-00272.) He alleged that his suit was timely because it was filed on January 29, 2018, within 90 days of receiving the notice of right to sue. Id. at ¶ IV.11.

Frausto filed a motion for non-suit, and on March 22, 2018, the court dismissed the action without prejudice. (D.E. 9, 12, Case no. 4:18-cv-00272.)

C. The present lawsuit

Frausto filed the present lawsuit against Southwest on December 4, 2019. (D.E. 1.) Frausto filed an amended complaint on February 27, 2020. (D.E. 23.) Frausto alleged that he has exhausted his administrative remedies by filing a second charge of discrimination with the EEOC on December 19, 2018, in addition to his 2015 EEOC charge. Am. Compl. ¶¶ 9-10. Frausto's 2018 EEOC charge stated in part:

I have been, and continue to be, targeted for retaliatory conduct by my employer, Southwest Airlines since I reported the discrimination that I faced. Moreover, when I engage [sic] in protected activity, I have received retaliatory treatment by my employer.

I amended my original complaint with the federal court in Houston on March 7, 2018, due to the continued race discrimination, hostile work environment and retaliation because of the complaints I filed with upper management. Within two months of that amendment, my employer continued to harass me for no reason in an effort to terminate my employment for participating In protected activity relating to my claims of race discrimination and retaliation against my employer.

Specifically, upon arriving to work on Wednesday May 9, 2018, I was informed my Supervisor Kassandra that Missy wanted to speak to me. When I inquired as to what it was in reference to she was unable to tell me. I proceeded to ask her if Derrick Henry was there, as he is our local union representative and had accompanied me to her office the day before. I let Kassandra know that I would go as soon as I was able to do so, and Derrick could accompany me. I proceeded in getting my a/c numbers for the day then rolling out to work my first flight of the day which was already at the gate at clock in time. As I was returning from working my first flight I was met by Servando Mata and Missy Putz on ramp over by gate 27/29. MissyPutz seemed visibly upset and informed me that she did not have time for me to have [a] representative with me. She proceeded to hand me a print out [sic] of a SOPI report #187895 in regard to a missing liquor kit on Originator Flight #253 A/C281 on May 4, 2018. She required me to answer questions without the aid of my union representative or my lawyer.

(D.E. 24-1 at 33.) Frausto received a notice of right to sue letter on April 3, 2019. Am. Compl. ¶ 10.

The claims in this lawsuit are similar to the claims in the earlier lawsuit. In Count One, Frausto alleges race discrimination and hostile work environment under Title VII. Am. Compl. ¶¶ 34-36. In Count Two, he alleges race discrimination and hostile work environment under the TCHRA. Id. ¶¶ 37-39. In Count Three, he alleges race discrimination and hostile work environment under 42 U.S.C. § 1981. Id. ¶¶ 40-42. In Count Four, he alleges retaliation pursuant to Title VII, and in Count Five, retaliation pursuant to the TCHRA. Id. ¶¶ 43-46.

Southwest moves to dismiss Frausto's claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (D.E. 24.) Frausto filed a response. (D.E. 25.) Southwest filed a reply and a supplemental reply. (D.E. 26, 27.)

2. Standard of Review

A. Dismissal under Rule 12(b)(1)

A court may dismiss an action for lack of subject matter jurisdiction under Rule 12(b)(1). The party asserting jurisdiction has the burden to prove the court's subject matter jurisdiction. Alfonso v. United States, 752 F.3d 622, 625 (5th Cir. 2014).

The court may look beyond the four corners of the complaint and consider undisputed facts evidenced in the record when those facts are relevant to determine whether the court has jurisdiction. St. Tammany Parish, ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009) (holding that the court may rely on the complaint alone, undisputed facts evidenced in the record, and/orthe court's resolution of disputed facts); see Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009) (holding that the court need not resolve disputed facts in favor of the plaintiff in determining jurisdiction).

"When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

B. Dismissal under Rule 12(b)(6)

Rule 12(b)(6) authorizes the court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Generally, the court is constrained to the "four corners of the complaint" to determine whether the plaintiff has stated a claim. Morgan v. Swanson, 659 F.3d 359, 401 (5th Cir. 2011); see Loofbourrow v. Comm'r, 208 F. Supp. 2d 698, 708 (S.D. Tex. 2002) ("[T]he court may not look beyond the four corners of the plaintiff's pleadings.").

"The court accepts all well-pleaded...