Marusak v. Sema Constr.
| Decision Date | 22 March 2022 |
| Docket Number | Civil Action 4:21-CV-646-P |
| Parties | CHAD MARUSAK Plaintiff, v. SEMA CONSTRUCTION, INC. Defendant. CIVIL ACTION NO. 421-CV-475-P CONSOLIDATED WITH |
| Court | U.S. District Court — Northern District of Texas |
FINDINGS, CONCLUSIONS, AND RECOMMENDATION REGARDING DEFENDANT'S RULE 12 MOTION TO DISMISS
Pending before the Court is Defendant Sema Construction, Inc. (“Sema" or “Defendant”)'s Rule 12 Motion to Dismiss and Answer to Plaintiffs Second Amended Complaint Subject Thereto ("Motion to Dismiss”) [doc. 68], filed February 7, 2022. The Court, having carefully considered the motion, response, reply, and all relevant applicable law, recommends that Defendant's motion be GRANTED and that all claims against it be DISMISSED.
On January 24, 2022, Plaintiff filed his Second Amended Complaint against Defendant [doc. 63]. In the Second Amended Complaint, the live pleading before the Court, Plaintiff alleges Defendant violated Title VII of the Civil Rights Act of 1964 ("Title VII”), the Americans with Disabilities Act of 1990 (“ADA”) and its amendments, the Age Discrimination in Employment Act (“ADEA"), and Section 503 of the Rehabilitation Act. (Plaintiffs Second Amended Complaint (“Pl.'s Sec. Am. Compl.”) at 2, 4, ¶ 8.) It is uncontested that Sema hired Marusak in February 2019 and that Marusak worked for the construction company through the end of June 2019. Marusak contends Sema hired him to "enter and labor on federal [sic] funded work sites, ” and, that on March 6, 2019, Plaintiff suffered a "right knee injury later establishing him as disabled by whole body mass report of (4%) four percent.” Id. at 3, ¶ 13. After sustaining his injury, Marusak alleges he “suffered months of demotions, endless harassment" and "willful retaliation'' at the hands of Sema from "April-May of 2019 lasting up to July 2019, ” Id.
In its Motion to Dismiss, Sema presents several bases for dismissal. First. Sema purports Plaintiffs Title VII claims should be dismissed because Marusak "failed to state a plausible claim for Title VII violations, ” by failing to allege discrimination on the basis of race, color, religion, sex. or national origin. (Defendant's Brief in Support (“Def's Br.”) at 2.) Next, Sema asserts Marusak failed to state a retaliation claim under either Title VII or the ADA. (Def's Br. at 4.) Specifically with respect to Title VII. Sema states Marusak did not allege that he "participated in an activity protected by Litle VII or that there was a causal connection between the protected activity and any adverse employment activity.” Id. Similarly, Sema states Marusak fails to meet the ADA's prima facie retaliation elements by failing to plead that he engaged in a protected activity, that an adverse action occurred, and that there was a causal connection between the activity and the action. Id. at 4-5.[1]
Next, Sema claims Marusak's discrimination claims under the ADA and its amendments should be dismissed, asserting Marusak's complaint is void of factual assertions that establish him as a qualified individual with a statutorily protected disability. (Def's Br. at 5.) Moreover, Sema states dismissal is warranted because Marusak wholly failed to assert he was ‘'discriminated against due to a knee injury, let alone that Defendant knew of [Marusak's] disability ... or [that Sema] failed to provide a reasonable accommodation to him.” Id. at 5. In its fourth basis for dismissal, Sema asserts Marusak failed to state a claim under Section 503 of the Rehabilitation Act. Sema argues, inter alia, that Marusak's claim under the Rehabilitation Act should be dismissed because Section 503 of the Rehabilitation Act does not provide a private cause of action. Id. at 6. Lastly, Sema asserts that Marusak has no viable claim under the ADEA, reasoning Marusak's claims under the ADEA should be dismissed because Marusak failed to establish age discrimination based upon disparate treatment or disparate impact theories. Id. at 8, citing Gaines v. City of Dallas, No. 3:18-CV-1867-L, 2018 WL 7078541. at *4(N.D. Tex. Dec. 28. 2018).
Rule 12(b)(6) allows motions to dismiss for failure to state claims upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Courts arc limited under 12(b)(6) to the four-corners of the texts; they may not look beyond the face of the pleadings. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); see also McCartney v. First City Bank. 970 F.2d 45, 47 (5th Cir. 1992). Additionally, the district court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff.[2] First City Bank, 970 F.2d at 47. “A well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of facts is improbable and that ‘recovery is very remote and unlikely.'” Bell AU. Corp. v. Twombly, 550 U.S. 544. 556 (2007); see also Conley v. Gibson, 355 U.S. 41, 45 (1957) (). Nonetheless, a plaintiff must provide the court in its pleadings with "more than labels and conclusions, ” as "a formulaic recitation of the elements of a cause of action will not do." Id. at 555. When a pleading has "not nudged [its] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570.
First at issue is whether Plaintiff has stated legitimate Title VII[3] or ADA retaliation claims against Sema. A successful retaliation claim under Title VII and the ADA must satisfy the Me Donnell-Douglas burden-shifting framework. Me Donnell-Douglas Corp. v. Green. 411 U.S. 792, 793 (1973; see. e.g.. Yancy v. U.S. Airways, Inc., 469 Fed.Appx. 339. 343 (5th Cir. 2012): Mohamad v. Dallas Cly. Comm. College Dist., No. 3:10-CV-l 1 89-L. 2012 WL 4512488, at *5 ) ().
McDonnell-Douglas developed three requisite prongs for retaliation claims. First. Plaintiff must establish a prima-facie case for retaliation. Feist v. Louisiana. Depl. of Justice, Office of the Atty. Gen., 730 F.3d 450 (5th Cir. 2013). Next, if a prima-facie case is established, the burden then shifts to the employer to produce a legitimate, non-discriminatory reason for the termination. Ids see also Cameron v. Idearc Media Corp., 685 F.3d 44, 48 (1 st Cir. 2012). Lastly, if the employer successfully meets its burden, the plaintiff must then prove by a preponderance of the evidence that defendant's alleged nondiscriminatory reason was a pretext for discrimination.[4]Ids, see also LeMaire v. Louisiana, 480 F.3d 383, 388-89 (5th Cir. 1996).
Under the first McDonnell-Douglas prong, establishing a prima facie case of retaliation, [5] a plaintiff must demonstrate that “(1) he engaged in a protected activity/ (2) an adverse employment action occurred, [6] and (3) a causal link existed between the protected activity and the adverse employment action.''[7] Walker v. Norris Cylinder Co., No. 3:03-CV-1009-D, 2005 WL 2278080 at *9 (N.D. Tex. Sept. 19, 2005) (citing Long v. Eastfield Coll., 88 F.3d 300. 304 (5th Cir. 1996)). See Cephas v. Texas Health and Human Servs. Comm it, 146 F.Supp.3d 818, 830 (S.D. Tex. 2015).
In the instant case, Marusak references that he “pass[ed] all requirements set forth by [t]he State of Texas DPS/DOT licensing division by written exams, ” and was able to "operate heavy machinery (Semi Truck and Trailer combinations)” as a Sema employee. (Pl.'s Sec. Am. Compl. at 3, ¶¶ 5, 6.) Marusak seems to assert that Sema retaliated against him by terminating his employment after he made "complaints applicable to the worksite or his situation”[8] to his Sema supervisors. Id. at 5, ¶12.
Marusak states he was "willfully demoted” on "more than one occasion regardless of qualification or licensing obtained or held by applicability to the promotion or original job offered." He further stales Sema "willfully issued additional volumes of work and paperwork unrelated to the position after report of opposition to cause problems for [him]” and that Sema sought to “further harass [him] after demotion” by having Marusak “check in hourly or daily with assigned persons to dictate the responsibilities [of his employment]," Id. Marusak maintains that “shortly after [his] demotion [Sema] willfully and [sic] focused on [him] in a way that was exterior of any job responsibility and focused on the short comings [sic] of [Marusak's] current injury.'- Id. at' 17. Specifically, Marusak references an "airconditioned portable toilet” Sema provided its employees on its worksite. Marusak maintains the toilet was guised as an "additional accommodation" to him. but that he "deems [the toilet] as retaliatory." Id. Marusak also discusses an unclear situation where he asserts an individual identified only as "Sedric was directed by Sema to take his property as an act of retaliation by Sema for Marusak's filing a discrimination claim against Sema. Id. at 4. ¶ 12.
The Court concludes, after reviewing the pleadings, that Marusak has failed to establish a prima-facie case of retaliation under both Title VII and the ADA. Even assuming that Marusak engaged in a protected activity (filing the workplace complaint) and was subject to an adverse employment action, Marusak has failed to plead facts that could establish a causal connection between his alleged protected activity and the alleged adverse employment action. Marusak is missing a critical component in this allegation - he fails to plead that Sema, specifically his...
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