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Razien v. Micro Focus Int'l PLC

United States District Court, W.D. Texas, Austin Division

April 25, 2017





         Before the Court are Defendant Micro Focus (US), Inc.'s Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim (Dkt. No. 13); Razien's Response (Dkt. No. 14); and the Reply (Dkt. No. 18); Defendant Hewlett Packard Enterprise Company's Motion to Dismiss (Dkt. No. 16); Plaintiff's Response (Dkt. No. 19); and the Reply (Dkt. No. 21). The District Court referred these Motions to the undersigned for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72 and Rule 1(d) of Appendix C of the Local Rules.


         This is an employment discrimination case brought pursuant to the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the Texas Labor Code, and Texas statutory and common law. Jason Razien alleges that he is disabled within the meaning of the pertinent statutes and that his former wife Emily Kate Samuel is also disabled. The following facts are taken from Razien's Second Amended Complaint (Dkt. No. 12). Razien was employed by Micro Focus's predecessor Attachmate from June 2000 to May 2010. He left for another opportunity, but returned to employment at Attachmate in 2015. At this time, Razien alleges he provided Attachment with all relevant medical history regarding his disability and that of his wife. Soon after Razien started at Attachmate, Micro Focus acquired Attachmate. Micro Focus conducted a reduction in force (RIF) resulting in the layoffs of about 500 employees. Razien alleges Micro Focus conducted the layoffs in an effort to make it more attractive for acquisition by Hewlett Packard Enterprise Company. The employees subject to the RIF by Micro Focus received severance packages. Razien alleges he was party to a conference call discussing the RIF, where he, and others on the call, were assured they would not be terminated. On May 30, 2015, Razien was terminated by Micro Focus for poor work performance. He alleges that, in fact, he was terminated because of his wife's high medical bills, which were covered in part by Micro Focus. Razien alleges that because Hewlett Packard required Micro Focus to cut costs before HP would acquire Micro Focus, HP acted in concert with Micro Focus in the termination.

         Razien filed a Charge of Discrimination with the EEOC on July 12, 2016, alleging the last date discrimination occurred was June 30, 2015. Dkt. No. 12-3. In that charge, he asserted that he was terminated by Micro Focus because he served as his disabled wife's caregiver. Razien received his Right to Sue letter, which found his charge was not timely filed, via a mailing on August 8, 2016. He filed this suit on November 6, 2016.

         II. ANALYSIS

         A. Standard of Review

         Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In deciding a Rule 12(b)(6) 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 [nonmovant].” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted), cert. denied, 552 U.S. 1182 (2008). To survive the motion, a nonmovant 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, 555 (2007). “The court's task is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). “A claim has facial plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable inference that the [movant] is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “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.” Id. Under Rule 8(a)(2), plaintiffs are not required to include “detailed factual allegations, ” but at the same time “more than an unadorned, the-defendant-unlawfully-harmed-me accusation is needed.” Twombly, 550 U.S. at 555 (citations and internal punctuation omitted). . The court generally is not to look beyond the pleadings in deciding a motion to dismiss. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). “Pleadings” for purposes of a Rule 12(b)(6) motion include the complaint, its attachments, and documents that are referred to in the complaint and central to the plaintiff's claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000).

         B. Timeliness of Claims Against Micro Focus

         In a deferral state such as Texas, an aggrieved party must file a charge of discrimination with the EEOC within 300 days after the alleged unlawful practice occurred. 42 U.S.C. § 2000e-5(e); see also Mennor v. Fort Hood Nat'l Bank, 829 F.2d 553, 554-55 (5th Cir. 1987). Razien filed his Charge of Discrimination on July 12, 2016, alleging he was terminated on June 30, 2015. Therefore, since Razien filed his charge 409 days after his termination, his charge was filed outside the applicable limitations period.

         Razien asserts that, although he filed outside the applicable deadline, the Court should equitably toll the statute of limitations because Micro Focus intentionally concealed facts from Razien and induced him not to act within the limitations period, by lying when it informed Razien he was being terminated for inadequate job performance. The statute of limitations for filing a charge of employment discrimination may be equitably tolled, but equitable tolling is a narrow exception to be applied sparingly. Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 880 (5th Cir. 2003). It is up to the court to evaluate whether such doctrines should be applied. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). The Fifth Circuit has developed its own guidelines for equitable tolling. Under them, equitable tolling is appropriate when the employer's affirmative acts mislead the employee and induce him not to act within the limitations period. Ramirez v. City of San Antonio, 312 F.3d 178, 184 (5th Cir. 2003).

         Razien's equitable tolling argument is quite contorted. He relies on several communications from the TWC regarding his eligibility for unemployment compensation, ending with a notice dated September 10, 2015, stating he was eligible because he had not been terminated for “misconduct.” Dkt. No. 12-4. He asserts that this letter marks the date he learned that the “true reason” he was terminated was not his performance, but was discrimination. He also asserts that the date a party could take an appeal of this decision-September 24, 2015-is the date until which the Court should toll the limitations period, and thus his July 12, 2016 charge, filed 292 days later, was timely.

         This argument fails for various reasons. First, Razien conflates the TWC's finding of no misconduct with a rejection of Micro Focus's stated reason for firing him. The standard for “misconduct” that disqualifies ...

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