United States District Court, S.D. Texas, Houston Division
Kenneth M. Hoyt United States District Judge.
matter is before the Court on the defendants', Lauren
Olenius and Olenius Holdings, LLC (collectively, the
“defendants”), motion to dismiss the
plaintiff's complaint for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (Dkt. No. 8). The plaintiff, Jennifer Maria
Calandra (the “plaintiff”), proceeding pro
se, has failed to file a response and the time for doing
so has long elapsed. Thus, pursuant to this Court's local
rules, the plaintiff's “[f]ailure to respond will
be taken as a representation of no opposition.” S.D.
Tex L.R. 7.4. After having carefully considered the motion,
the pleadings, and the applicable law, the Court determines
that the defendants' motion to dismiss should be GRANTED.
plaintiff commenced the instant action on January 31, 2017,
alleging that the defendants terminated her employment
because she is deaf in violation of Title VII. On February
18, 2016, the U.S. Equal Employment Opportunity Commission
(“EEOC”) issued a Dismissal and Notice of Rights
Letter to the plaintiff informing her that “[b]ased
upon its investigation, the EEOC is unable to conclude that
the information obtained establishes violations of the
statutes.” (Dkt. No. 1). It further advised the
plaintiff of her right to file a lawsuit against the
defendant within 90 days of her receipt of the notice.
defendants now move to dismiss the plaintiff's complaint,
asserting that she has failed to: (1) plead facts evidencing
a claim that is plausible on its face; (2) satisfy the
statutory prerequisites of her Title VII claim because the
defendants do not qualify as the plaintiff's former
“employer” within the meaning of Title VII; and
(3) file her lawsuit within the ninety-day limitation period
required by Title VII. This Court agrees.
the plaintiff attempts to assert a claim under Title VII for
discrimination on the basis of her disability-her profound
hearing loss or deafness. Title VII makes it “an
unlawful employment practice for an employer . . . to fail or
refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex
or national origin.” 42 U.S.C. § 2000e-2(a)(1). It
does not, however, protect against discrimination on a basis
of one's disability. See Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007) (citing 42 U.S.C. §
2000e-2) (other citations and quotations omitted).
Accordingly, the plaintiff has failed to state a claim under
Title VII upon which relief can be granted and her complaint
should be dismissed.
even assuming the plaintiff has stated a viable claim under
Title VII, she has, nonetheless, failed to satisfy the
statutory prerequisites of her Title VII claim. In order to
be held liable under Title VII, a defendant must fall within
Title VII's definition of an “employer.”
Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir.
1994). The term “employer” is defined within the
meaning of Title VII to include “a person engaged in an
industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or
more calendar weeks in the current or preceding calendar
year, and any agent of such a person.” 42 U.S.C. §
2000e(b) (emphasis added). Here, the defendants maintain that
they do not qualify as the plaintiff's former
“employer” within the meaning of Title VII
because, during the 2015 calendar year, the number of
employees who worked for them “hovered between 13 and
16 employees but never for a period of twenty or more
calendar weeks.” (Dkt. No. 8 at 4). They further
contend that the plaintiff did not work for them for twenty
or more calendar weeks because she was hired on October 7,
2015 and was terminated on February 2, 2016. The plaintiff,
in contrast, does not dispute their contentions. It is
well-settled that an employment discrimination claim against
an employer that does not meet Title VII's definition of
an “employer” fails to state a claim upon which
relief can be granted. See Arbaugh v. Y & H
Corp., 546 U.S. 500, 516 (2006) (explaining that
“the threshold number of employees for application of
Title VII is an element of a plaintiff's claim for
relief”); see also Muhammad v. Dallas Cnty. Cmty.
Supervision & Corrs. Dep't, 479 F.3d 377, 380
(5th Cir. 2007) (reasoning that determining whether a
defendant qualifies as an “employer” under Title
VII involves a two-step process: first, a court must
ascertain whether the defendant meets Title VII's
statutory definition of an “employer” and second,
a court must evaluate whether an employer-employee
relationship exists between the parties) (internal citations
omitted). Therefore, the plaintiff's Title VII claim also
fails due to the plaintiff's inability to satisfy Title
VII's statutory prerequisites.
the plaintiff has failed to file her lawsuit within the
90-day period required by Title VII. A civil action brought
pursuant to Title VII must be commenced within ninety days
after receipt of the right-to-sue letter issued by the EEOC.
See Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191
(5th Cir. 1992) (citing 42 U.S.C. § 2000e-5(f);
Price v. Digital Equip Corp., 846 F.2d 1026, 1027
(5th Cir. 1988)). The Fifth Circuit has held that “the
90-day period of limitation established by 42 U.S.C. §
2000e-5(f)(1) begins to run on the date that the EEOC
right-to-sue letter is delivered to the offices of formally
designated counsel or to the claimant.” Ringgold v.
Nat'l Maint. Corp., 796 F.2d 769, 770 (5th Cir.
1986) (internal citations omitted). “The ninety-day
filing requirement is a statutory precondition to maintaining
a cause of action in federal court . . . and is treated as a
statute of limitations for all purposes.” Mitchell
v. Champs Sports, 42 F.Supp.2d 642, 646 (E.D. Tex. 1998)
(citing Espinoza v. Missouri Pac. R.R., 754 F.2d
1247, 1248 n.1 (5th Cir. 1985) (internal citations omitted)).
As such, “[c]ourts within this Circuit have repeatedly
dismissed cases in which the plaintiff did not file a
complaint until after the ninety-day limitation period had
expired.” See Taylor v. Books A Million, Inc.,
296 F.3d 376, 379 (5th Cir. 2002).
case, the plaintiff did not file her lawsuit until January
31, 2017-almost a year after the EEOC issued its Dismissal
and Notice of Rights Letter to her on February 18, 2016.
Although the plaintiff maintains that she never received the
EEOC's initial issuance of its Dismissal and Notice of
Rights Letter on February 18, 2016 due to a typographical
error in the zip code, she nevertheless, obtained notice of
its findings so as to permit her to submit a request to the
EEOC on November 9, 2016, asking it to reconsider its
findings. (See Dkt. No. 1). It is also important to
note that the EEOC's original letter to her was not
returned as undeliverable. (Id.) In any event, even
assuming the timeliness of her lawsuit, the plaintiff's
Title VII claim still fails on the grounds set forth above
and must be DISMISSED.
the aforementioned, the plaintiff is hereby GRANTED 30 days
from the date of this Order to file an amended pleading
alleging a viable cause of action against the defendants. To
the extent that the plaintiff intends to assert a cause of
action under the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq. (“ADA”), she will
still be required to establish that the defendants qualify as
her “employer” within the meaning of the ADA-her
mere statement ...