Prewitt v. Cont'l Auto.
| Decision Date | 26 February 2013 |
| Docket Number | Cv. No. SA:12–CV–582–DAE. |
| Parties | Larry W. PREWITT, Sr., Plaintiff, v. CONTINENTAL AUTOMOTIVE, Defendant. |
| Court | U.S. District Court — Western District of Texas |
OPINION TEXT STARTS HERE
Adam Poncio, Poncio Law Offices PC, San Antonio, TX, for Plaintiff.
Santiago Alaniz, Fisher and Phillips LLP, San Antonio, TX, Stephen J. Roppolo, Fisher & Phillips L.L.P., Houston, TX, for Defendant.
ORDER: (1) GRANTING DEFENDANT'S MOTION FOR PARTIAL DISMISSAL; (2) DENYING AS MOOT DEFENDANT'S MOTION FOR MORE DEFINITE STATEMENT
On February 25, 2013, the Court heard oral argument on Defendant Continental Automotive's Motion for Partial Dismissal and Motion for More Definite Statement (doc. # 7). Adam Poncio, Esq., appeared at the hearing on behalf of Plaintiff Larry W. Prewitt, Sr. Santiago Alaniz, Esq., appeared on behalf of Defendant Continental Automotive. After considering Defendant's Motions and the supporting and opposing memoranda, and in light of the arguments presented at the hearing, the Court GRANTS Defendant's Motion for Partial Dismissal and DENIES AS MOOT Defendant's Motion for More Definite Statement.
For the purposes of a motion to dismiss and a motion for more definite statement, the Court accepts all well-pleaded allegations in the Complaint as true. According to the Complaint, Plaintiff Larry W. Prewitt, Sr. (“Plaintiff”) began working for Motorola in November of 1999. (Doc. # 1 ¶ 5.) In 2006, Defendant acquired Motorola's automotive business division in Seguin, Texas, and Plaintiff continued to work there. ( Id.; doc. # 7 at 3.) Sometime between March 13, 2009, and May 11, 2009, Plaintiff filed a Discrimination Charge (“Charge 1”) based on National Origin, Age, and Disability with the Equal OpportunityEmployment Commission (“EEOC”). ( Id. ¶ 6; EEOC No. 846–2009–22464.) 1 Shortly thereafter, in “late Spring 2009,” Plaintiff went on medical leave due to a back injury and shoulder surgery, returning to work in March or April of 2010.2 ( Id. ¶ 7.) At the time he returned to work, Plaintiff suffered from an unspecified disability. ( Id.)
In order to accommodate Plaintiff's disability, Defendant assigned Plaintiff to the sandblasting department. ( Id. ¶ 8.) This position required Plaintiff to work twelve-hour shifts in a sitting position with his arms in rubber sleeves. ( Id.) One hand held a part for cleaning, and the other held a high-pressure hose that sprayed very fine glass beads. ( Id.) Plaintiff alleges that this new position “added additional stress to Plaintiff's lower back and shoulders.” ( Id.) In addition, the sandblasting position required employees to work around fiberglass, fiberglass dust, and a variety of other chemicals, causing breathing problems for Plaintiff. ( Id. ¶ 9.) Defendant denied Plaintiff's request for a face mask and then required Plaintiff to remove the mask that he purchased and wore to work. ( Id.)
On April 18, 2010, in response to this incident, Plaintiff filed with the U.S. Department of Labor, Occupational Safety and Health Administration (“OSHA”) a report alleging safety or health hazards in the sandblasting area. ( Id. ¶ 10.) Following Plaintiff's complaint, Defendant provided Plaintiff with protective equipment. ( Id.) Then, on April 19, 2010, approximately six days after Plaintiff was assigned to the sandblasting department, Plaintiff “received a written counseling regarding his poor performance and inability to reach the goals of the sandblasting position.” ( Id. ¶ 11.)
On four days over the next two months—April 24, April 25, May 26, and May 27 of 2010—Defendant represented that there was “not enough work to be done,” and Plaintiff was sent home. ( Id. ¶ 12.) Defendant told Plaintiff that he could use his paid time off (“PTO”) or go without pay. ( Id.) According to the Complaint, Defendant's attendance policy permitted employees to use up to forty hours of PTO for unplanned absences; once this PTO was consumed, however, any time that an employee was away from work for more than two hours was counted as an absence, and a “progressive discipline plan” was initiated. ( Id.) Plaintiff used a PTO day on each of the four days that he was sent home. ( Id.) The Complaint alleges that on those days “Plaintiff's co-workers were given other job assignments akin to the sandblasting position and were not sent home ....” ( Id.)
On July 12, 2010, Plaintiff received a verbal warning for being absent from work on July 8, 2010, without the PTO to cover those hours. ( Id. ¶ 13.) On July 23, 2010, Plaintiff filed a Retaliation Charge (“Charge 2”) with the EEOC. ( Id. ¶ 14; EEOC Charge No. 451–2010–01235.) Plaintiff attached a copy of this Charge to his Response to Defendant's Motion to Dismiss. (Doc. # 8 Ex. C.)
On August 10, 2010, Plaintiff received a written warning regarding his absence from work—again without the PTO to cover the absence—on July 16, 2010. ( Id. ¶ 15.)
On August 25, 2010, the EEOC mailed and emailed Plaintiff a letter informing him of its preliminary determination to dismiss Charge 1. ( Id. ¶ 16.) This letter informed Plaintiff that the dismissal notice he would soon receive “[would] represent a final determination by the [EEOC] and [would] describe [his] right to pursue the matter by filing a lawsuit in federal court within 90 days of [his] receipt of the dismissal notice.” .) Plaintiff received that dismissal notice and a “Notice of Suit Rights” for Charge 1 on approximately September 10, 2010. (Doc. # 1 ¶ 17.)
On September 15, 2010, Plaintiff received a second written warning for being absent on September 7, 2010, and not having the PTO to cover those hours. ( Id. ¶ 18.)
On approximately June 21, 2011, Plaintiff filed an internal sexual discrimination and harassment complaint against a female coworker. ( Id. ¶ 19.) Sometime thereafter, Plaintiff was moved to another section of the plant. ( Id.)
On June 30, 2011, the EEOC issued a “No Findings” with regard to Charge 2, indicating that it was “unable to conclude that the information obtained establishe[d] violations of the statutes.” (Doc. # 1 Ex. B.) This same document provided Plaintiff with a “Notice of Suit Rights” for Charge 2, again indicating that Plaintiff had ninety days following his receipt of the Notice to file a civil action based on the incidents alleged in his Charge. ( Id.)
On July 15, 2011, Plaintiff received a “written counseling” because a former female co-worker had filed a sexual harassment case against him. (Doc. # 1 ¶ 20.) According to the Complaint, Defendant concluded that the conduct had occurred but “refused to inform Plaintiff of when the complaint was made, when the alleged harassment occurred[,] or who in management was investigating the complaint.” ( Id. ¶ 21.)
On July 19, 2011, Plaintiff filed a third Charge with the EEOC, this one alleging Retaliation and Discrimination Based on National Origin (“Charge 3”). ( Id. ¶ 22; EEOC Charge No. 451–2011–01541.) Plaintiff alleges that he amended this Charge to add violations of the Americans with Disabilities Act (“ADA”) (doc. # 1 ¶ 22), and he attaches that amendment as an attachment to his Response to Defendant's Motion to Dismiss. (Doc. # 8 Ex. A at 2.)
On August 17, 2011, Plaintiff was terminated. ( Id. ¶ 23.) The Complaint alleges that Defendant terminated Plaintiff because he was absent on August 9, 2011, and did not have the PTO to cover those hours. ( Id.) On March 15, 2012, Plaintiff received from the EEOC a “Notice of Suit Rights” for Charge 3 that was dated March 13, 2012. ( Id. ¶ 24.) Again, this Notice informed Plaintiff that he had ninety days to file a civil action.
On June 13, 2012, Plaintiff brought suit against Defendant in the Western District of Texas. (Doc. # 1–1.) The Complaint alleges that Defendant, through its officers and agents, harassed Plaintiff, retaliated against him, and discriminated against him based on national origin, race, sex, and disability in violation of Title VII, the ADA, and the Texas Labor Code. (Doc. # 1 ¶ 25.) Plaintiff seeks (1) “lost wages, past and future”; (2) damages for mental anguish and emotional distress; (3) compensatory damages and punitive damages; and (4) attorneys' fees, expert fees, and costs. ( Id. ¶ 29.)
On August 31, 2012, Defendant filed the Motion for Partial Dismissal and the Motion for More Definite Statement that are now before the Court. (Doc. # 7.) On September 14, 2012, Plaintiff filed a Response to Defendant's Motion (doc. # 8); Defendant did not file a Reply. For the reasons that follow, the Court grants Defendant'sMotion for Partial Dismissal and denies as moot Defendant's Motion for More Definite Statement.
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, 127 S.Ct. 2499, 168 L.Ed.2d 179 (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) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.2004)). 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
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