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Calhoun v. Holloway

United States District Court, S.D. Texas, Houston Division

September 18, 2017

SAMUEL CALHOUN, Plaintiff,
v.
BRANDON HOLLOWAY, et al., Defendants.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE

         There are two motions pending before the Court in this employment discrimination and tort suit filed by Plaintiff Samuel Calhoun, who is proceeding pro se. One is a motion to dismiss [Doc. # 29] filed by Defendants employed by H.E. Butt Grocery Company (“HEB”), specifically, Scott McClelland, Chris Boehn, Barnard Douglas, and Bridgett Mervin (the “HEB Defendants”). Defendants FirstFleet, Inc. (“FirstFleet”), Brandon Holloway, and Diane Hill (collectively, the “FirstFleet Defendants) also have filed a motion to dismiss [Doc. # 17]. Both motions address Plaintiff's original and first amended complaints. The Court heard oral argument from the parties on August 22, and incorporates Plaintiff Calhoun's comments into the motion record. For reasons set forth below, the Court grants the HEB Defendants' motion and dismisses all of Plaintiff's claims against the HEB Defendants. The Court grants in part and denies in part the FirstFleet Defendants' motion. Accordingly, the Court must dismiss all Plaintiff's claims against Holloway and Hill, and all of Plaintiff's claims against Defendant FirstFleet except his claim under Title VII of the Civil Rights Act of 1964 as amended, which remains pending.

         I. PROCEDURAL BACKGROUND

         Plaintiff Samuel Calhoun filed this case on April 21, 2017, against the FirstFleet Defendants[1] and the HEB Defendants. The FirstFleet Defendants and HEB Defendants each moved to dismiss Plaintiff's Complaint (“Original Complaint”) [Doc. # 1]. See “Defendants FirstFleet, Inc. and FirstFleet Employees' Motion to Dismiss Plaintiff's Complaint” (“FirstFleet's Motion to Dismiss Original Complaint”) [Doc. # 17]; [HEB] Defendants' Motion to Dismiss [Doc. # 23].

         Plaintiff filed a Response to the Motions to Dismiss, requesting leave to amend and offering an amended complaint. See “Plaintiff's Response to Defendants['] Motion to Dismiss, Plaintiff[']s Amended Complaint” (“Response”) [Doc. # 27]. The Court construes Plaintiff's Response as a motion for leave to amend and grants that motion. Plaintiff's proposed Amended Complaint has been docketed as a separate entry on the Court's docket. See Amended Complaint [Doc. # 33].[2]

         The FirstFleet Defendants have replied to Plaintiff's Response (“Reply”) [Doc. # 28]. These Defendants argue that Plaintiff's Amended Complaint again fails to allege legally viable claims against the FirstFleet Defendants. Additionally, the FirstFleet Defendants argue that Plaintiff now admits his claim under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”) is untimely because Plaintiff's suit was filed on April 21, 2017, ninety-three days after the date of the Equal Employment Opportunity Commission (“EEOC”) Notice of Right to Sue that Plaintiff received, which Plaintiff attached to his Amended Complaint. See Id. at 1-2; Notice of Right to Sue, Exh. A to Amended Complaint (“Notice of Right to Sue”) [Doc. # 33], at ECF 14.

         Because the written record contained no explanation from Plaintiff why he did not initiate this lawsuit within ninety days of receiving the Notice of Right to Sue, as required under Title VII, see 42 U.S.C. § 2000e-5(f)(1), the Court gave Plaintiff Calhoun an opportunity to provide such an explanation orally at the August 22 Initial Pretrial Conference in this case. At the Initial Pretrial Conference, Plaintiff stated, under oath, that he did not actually receive the EEOC Notice of Right to Sue until several days after the EEOC issued it on January 18, 2017. Based on Plaintiff's sworn representation regarding the timing of his receipt of the EEOC Notice of Right to Sue, the Court ruled that Plaintiff had timely filed his Title VII claims against the HEB and FirstFleet Defendants. See Hearing Minutes and Order dated August 22, 2017 [Doc. # 34].[3]

         For reasons explained below in Section IV, the Court concludes that the HEB Defendants' Motion [Doc. # 29] should be granted in its entirety because Plaintiff's Amended Complaint fails to cure the defects identified by those Defendants, see Motions to Dismiss [Docs. # 23, # 29], and because further amendment would be futile with respect to Plaintiff's claims against the HEB Defendants.[4] Accordingly, Plaintiff's claims against the HEB Defendants will be dismissed with prejudice.

         For similar reasons also explained below in Section IV, the Court concludes that the FirstFleet Defendants' Motion [Doc. # 17] should be granted in part and denied in part. Accordingly, Plaintiff's claims against the FirstFleet Defendants, other than Plaintiff's claim under Title VII against Defendant FirstFleet, will be dismissed with prejudice.

         II. FACTUAL BACKGROUND

         Plaintiff, who is black, was employed by FirstFleet as a truck driver. Amended Complaint [Doc. # 33], at ECF 1; FirstFleet's Motion to Dismiss Original Complaint [Doc. # 17], at 1. Plaintiff alleges that on March 9, 2016, while on duty, he was involved in an altercation with HEB employee Chris Boehn in an HEB-owned yard. See Amended Complaint [Doc. # 33], at ECF 1-2. FirstFleet, Inc. investigated the incident and terminated Plaintiff shortly thereafter. See Amended Complaint [Doc. # 33], at ECF 2-3. According to Plaintiff, the investigation was conducted unfairly and tainted by the actions and racial animus of both the FirstFleet and HEB Defendants. See Amended Complaint [Doc. # 33], at ECF 2-4, 6-8. Plaintiff alleges he was wrongly terminated and denied “Texas Workforce benefits.” See Id. at ECF 8. Plaintiff filed an administrative complaint with the EEOC on January 5, 2017, and the EEOC issued a Notice of Right to Sue on January 18, 2017. See Notice of Right to Sue and Charge of Discrimination [Doc. # 33], at ECF 14-15.[5]

         Construed liberally, Plaintiff alleges that he was discriminated against based on his race, in violation of Title VII. See generally Amended Complaint [Doc. # 32]. Plaintiff also claims that the FirstFleet Defendants and the HEB Defendants violated 42 U.S.C. § 1983 (“§ 1983”) by depriving him of his constitutional rights and that Defendants FirstFleet and McClellan failed to adequately train and supervise their employees. See Id. at ECF 3, 5-6, 7, 10. Defendants' motions to dismiss followed.

         III. LEGAL STANDARDS

         A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is viewed with disfavor and is rarely granted. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. Harrington, 563 F.3d at 147. The complaint must, however, contain sufficient factual allegations, as opposed to legal conclusions, to state a claim for relief that is “plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Patrick v. Wal-Mart, Inc., 681 F.3d 614, 617 (5th Cir. 2012). When there are well-pleaded factual allegations, a court should presume they are true, even if doubtful, and then determine whether they plausibly give rise to an entitlement to relief. Iqbal, 556 U.S. at 679. Additionally, regardless of how ...


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