Tucker v. Waffle House, Inc.

• Decision Date: 11 April 2013
• Docket Number: CIVIL ACTION NO: 12-2446
• Parties: VICKI TUCKER v. WAFFLE HOUSE, INC.
• Court: U.S. District Court — Eastern District of Louisiana

VICKI TUCKER

v.WAFFLE HOUSE, INC.

CIVIL ACTION NO: 12-2446

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

Dated: April 11, 2013

UNITED STATES MAGISTRATE

JUDGE KAREN WELLS ROBY

ORDER AND REASONS

Before the Court is Defendant, Waffle House, Inc.'s, ("Waffle House") Defendant's Rule 12(b)(6) Motion to Dismiss (R. Doc. 9), seeking dismissal of all claims brought against it by Plaintiff, Vicki Tucker, ("Tucker").¹ The motion is opposed in part, (R. Doc. 16) and Waffle House has submitted a Reply (R. Doc. 22). The motion was noticed for submission on December 5, 2012, and heard on the briefs on that date.

I. Background

This is an employment discrimination case, in which Tucker's allegations are as follows.² Tucker is a white female aged 58, who was formerly employed as a waitress at a Waffle House restaurant located in St. Bernard Parish, between September 9, 2010 and December 23, 2010. (R. Doc. 1-2, p. 12).³ She alleges that while employed at Waffle House, she "was subjected to diverseand bias treatment in comparison to the other employees, who were of a younger age group, different gender, different color." Id. at 4.⁴ Specifically, she states that two other waitresses, both African-American females, made discriminatory remarks about her race and age between November 22, 2010 and December 23, 2010, but were never disciplined by their manager, "Ms. Alveda." Id. at 13.

Tucker twice used Waffle House's "Associate Hotline" to complain about the discrimination, and at some point also brought the issue to her supervisor's attention. Id. at 4-5.⁵ On or about December 23, 2010, her employment with Waffle House was terminated, for "reporting my discrimination to my supervisor." Id. at 5, 13. She alleges that the managers who executed her discharge from Waffle House were of another race than she, and that she was replaced by a waitress who was also of the opposite race. Id. at 4.⁶

Subsequently, on June 20, 2011, Tucker received a letter from Waffle House, which indicated, without further specificity, that there was "sufficient evidence to support some of her allegations." Id at 5, 7. Tucker then alleges that on "October 9, 2011," she filed "Charge[s] of Discrimination" with both the Louisiana Commission on Human Rights and the New Orleans, Louisiana Field Office of the Equal Employment Opportunity Commission ("EEOC"). Id. at 7.⁷ Tucker has also attached an Intake Questionnaire to her Complaint, dated September 25, 2011, on which she has checked boxes indicating that she was discriminated against on the basis of her race and age, and that her termination was retaliatory. Id. at 13.

On November 7, 2011, the EEOC returned a letter to Tucker, indicating that the EEOC wasclosing its file on her charge because it was not timely filed. Id. at 24.⁸ The EEOC's letter stated that Tucker had the right to bring suit within 90 days. Id.

Tucker filed the instant suit on December 27, 2011. Id. at 2.⁹ She alleges that Waffle House's conduct violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"), and that she was discriminated against on the basis of her race, age, and gender. Id. at 4-5. She also alleges that Waffle House's actions violated the Louisiana Employment Discrimination Act, La. Rev. Stat. Ann. art. § 23:301 et seq., as well as her rights under the United States Constitution. Id. at 5-6.¹⁰ Finally, she alleges that Waffle House's actions constituted conversion and abuse of process, and that Waffle House was also liable for "malicious actions." Id. at 5. She seeks both compensatory and punitive damages, including lost wages, front pay, back pay, all lost job benefits, and reinstatement in her employment. Id.¹¹

Waffle House has moved to dismiss the Complaint, which Tucker opposed in part (R. Doc. 16); Waffle House has filed a Reply (R. Doc. 22). The motion was heard on the briefs on December 6, 2012.

II. Standard of Review

Federal Rule of Civil Procedure ("Rule") 12(b)(6) provides that a claim may be dismissed for failure to state a claim upon which relief may be granted. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that isplausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "We must construe the complaint in the light most favorable to the plaintiff and draw all reasonable inferences in the plaintiff's favor." Elesensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 368, 372 (5th Cir. 2008). "A court's analysis generally should focus exclusively on what appears in the complaint and its proper attachments." Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir. 2012).

The Supreme Court, however, has declared that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (internal citation omitted). In particular,

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. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Iqbal, 556 U.S. at 678 (citations and selected quotation marks omitted). In determining whether a complaint states a claim that is plausible on its face, the court "draw[s] on its judicial experience and common sense." Iqbal, 556 U.S. at 679. Furthermore, the factual allegations must be "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.

III. Analysis

A. Conversion to Summary Judgment

As noted below, the Court has elected to consider documents not explicitly referenced in the Complaint, which it deems to be public records susceptible to taking judicial notice.¹² Therefore, the first issue is whether consideration of such documents require the Court to convert this motionto one for summary judgment.¹³

"Generally, in deciding a motion to dismiss for failure to state a claim, if matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." In re Katrina Canal Breaches Litigation, 493 F.3d 191, 206 (5th Cir. 2007) (quoting Rule 12(b)(6)). However, the plain language of Rule 12(b)(6) makes such conversion optional, and even where exclusion is appropriate, Fifth Circuit courts have elected to exclude documents without argument instead of converting the motion to one for summary judgment. See Walch v. Adjutant General's Dep't of Texas, 533 F.3d 289, 293-94 (5th Cir. 2008) (electing to consider only those letters attached to Defendant's motion to dismiss which were "explicitly referenced" in the Complaint). Further, consideration of public records do not require such conversion. Papasan v. Allain, 478 U.S. 265, 269 n.1 (1986); Cinel v. Connick, 15 F.3d 1338, 1346 n.6 (5th Cir. 1994). Certain EEOC documents are considered to fall within the category of "public records." Wilson v. Lockheed Martin Corp., No. 03-2276, 2003 WL 22384933, at *2 (E.D. La. Oct. 15, 2003) ("Any reference to EEOC documents . . . does not convert the 12(b)(6) motion to a motion for summary judgment.").

In this case, not all of the documents submitted fall under the "public records" exception. The Court will consider these documents as they become relevant, and will make other exclusions as necessary to prevent conversion of the motion to one for summary judgment.

B. Whether the Court Should Grant Claims as Unopposed

Waffle House has moved to dismiss the claims Tucker has brought under Title VII, the ADEA, Louisiana state law, the United States and Louisiana Constitutions, as well as her claims forconversion, abuse of process, and "malicious actions."¹⁴ In her opposition, Tucker opposed Waffle House's motion as to some, but not all, of these claims. Waffle House's Reply argues that because Tucker failed to contest the motion as it related to Tucker's claims under the state and federal constitutions, or for gender discrimination, conversion, abuse of process, and "malicious actions," Waffle House's Motion to Dismiss should be granted as unopposed with respect to these claims. (R. Doc. 22, p. 1).

The Fifth Circuit has recently held that "Rule 12 does not by its terms require an opposition; failure to oppose a 12(b)(6) motion is not itself grounds for granting the motion." Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 799 (5th Cir. 2012) (vacating dismissal where party failed to comply with Court's explicit briefing order); Webb v. Morella, 457 F. App'x 448, 452 (5th Cir. 2012) (reversing district court's granting of 12(b)(6) motion as unopposed due to failure to file opposition pursuant to District's local rule); National R.R. Passenger Corp. v. Textron, Inc., 2013 WL 139809, at *2 (E.D. La. Jan. 10, 2013) (considering merits of a 12(b)(6) motion where party failed to file opposition). Instead, courts have found where a claim has gone unopposed, the claims can be considered "without the benefit of legal argument on the Plaintiff's behalf." Jones v. City of Port Arthur, 2012 WL 6853909, at *1 & n.2 (E.D. Tex. Dec. 5, 2012) (citing, e.g., Morella and considering merits of 12(b)(6) motion even where no response was filed); see Pizzini v. Bank of America, N.A., 2012 WL 1834052, at *2 & n.2 (W.D. Tex. May 18, 2012) (applying same reasoning to motion for judgment on the pleadings).

This case is slightly different from the examples listed above, as Tucker in fact filed an opposition, in which she simply failed to address all...