United States District Court, S.D. Texas, Brownsville Division
MEMORANDUM OPINION AND ORDER
S. Hanen United States District Judge
the Court are Defendant's Motion to Dismiss [Doc. No. 9],
Plaintiff's Response to Defendant's Motion to Dismiss
[Doc. No. 15], and Defendant's Reply to Plaintiff's
Response to Defendant's Motion to Dismiss [Doc. No. 18].
For the following reasons, the Court grants the
Defendant's motion in part and denies it in part.
Rodolfo Perez (“Plaintiff”) is a former employee
of the United States Postal Service. [Doc. No. 1, at 2]. He
has brought suit against the Defendant, Megan Brennan,
Postmaster General of the United States
(“Defendant”). [Id.]. Plaintiff began
working for the Postal Service in 1982, and was last employed
as a City Letter Carrier. [Id.]. According to the
pleadings, Plaintiff is Hispanic, of Mexican-American
alleges that, when Jeffery Jenkins began working as the
Postmaster of the Brownsville post office in the fall of
2007, he created a hostile work environment. [Id.].
Plaintiff claims that in September 2012 he received a
subpoena and gave testimony in another case also apparently
concerning racial animus at the post office, where he says he
testified about Postmaster Jenkins's ongoing race
discrimination and retaliation. [Id. at 3]. He also
says he was “currently engaged in his own EEO complaint
of discrimination and retaliation” at that time.
December 26, 2012, the day after Christmas, Plaintiff claims
that his first-level supervisor, Jose Delgado, accused him of
coming to work drunk and ordered him to go home. [Doc. No.
9-5, at 3]. Plaintiff says he was not drunk or impaired and
complains that management “allowed [him] to drive
himself home, ” but apparently does not dispute that he
smelled of alcohol or that he had consumed some amount of
alcohol. [Doc. No. 1, at 3]. On December 28, 2012,
Plaintiff's superiors conducted a Pre-Disciplinary
Interview with him, and on January 24, 2013, he was issued a
seven-day suspension for the alleged on-duty impairment.
[Id. at 4].
also alleges that he was issued a letter of warning on
January 22, 2013, which admonished him for unacceptable
attendance. [Id. at 3]. Plaintiff claims he had
taken off “less than three days due to illness, ”
and that he provided medical documentation for his absence.
[Id.]. The letter rebuked Plaintiff for taking five
days of unscheduled sick leave between October 12, 2012, and
January 8, 2013, and approximately 6 and ½ hours of
unscheduled leave when he was sent home the day after
Christmas. [Doc. No. 9-5, at 4].
alleges that Postmaster Jenkins called the Hispanic and
Mexican-American employees of the post office “lazy,
” although he does not say when this occurred. [Doc.
No. 1, at 3]. Plaintiff claims that he was constructively
discharged, effective February 1, 2013. [Id. at 4].
8, 2013, Plaintiff filed an equal employment opportunity
(“EEO”) complaint with the Postal Service. [Doc.
No. 9-6, at 1]. He raised the following issues: 1)
discrimination based on race and national origin, 2)
retaliation, and 3) harassment. [Id.]. On April 1,
2013, he received a letter (“the acceptance
letter”) from the Postal Service, notifying him which
of the issues he raised had been accepted for investigation.
[Id. at 5]. The letter informed him that the Postal
Service would investigate his discrimination and retaliation
claims, but the harassment issue he raised had not been
accepted. [Id.]. The letter told him that if he
disagreed with the decision regarding the harassment claim,
he could respond in writing within seven days.
[Id.]. Plaintiff did not respond. [Id.].
the investigation resulted in the denial of his two accepted
claims, the Postal Service notified Plaintiff that he could
request a hearing before an Administrative Law Judge
(“ALJ”) from the Equal Employment Opportunity
Commission (“the EEOC”), which he did. [Doc. No.
9-6, at 2]. On April 7, 2016, the ALJ issued a summary
judgment decision (“the ALJ decision”) against
Plaintiff, and also specifically noted that Plaintiff's
harassment claim was not before the ALJ for adjudication.
[Doc. No. 9-5, at 1, 10].
appealed that decision, and on November 17, 2016, the EEOC
affirmed the ALJ (“the EEOC appeal decision”).
[Doc. No. 9-6, at 1]. That decision, too, informed him that
his claims had been denied, except for his harassment claim,
which was not before the Commission either. [Id. at
February 21, 2017, Plaintiff filed this lawsuit. [Doc. No.
1]. In his complaint, Plaintiff asserts three claims, each in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title
VII”): (1) he claims that the Defendant discriminated
against him because of his race and national origin, (2) he
claims that the Defendant retaliated against him because of
testimony he gave in another discrimination case and because
of his own EEO complaints, and (3) he claims that the
Defendant fostered a hostile work environment. [Doc. No. 1,
at 4-6]. Defendant asks this Court to dismiss Plaintiff's
claims under Federal Rules of Civil Procedure 12(b)(1) and
Federal Rule of Civil Procedure 12(b)(6), a court should
dismiss a complaint that “fail[s] to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A
complaint “‘does not need detailed factual
allegations, ' but must provide the plaintiff's
grounds for entitlement to relief-including factual
allegations that when assumed to be true ‘raise a right
to relief above the speculative level.'”
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)). To survive a 12(b)(6) motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombley, 550 U.S. at 570).
The plausibility standard “is not akin to a probability
requirement, ” though it does require more than simply
a “sheer possibility” that a defendant has acted
unlawfully. Id. at 678.
12(b)(1) requires a court to dismiss claims for which the
court lacks subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). “A case is properly dismissed for lack of
subject matter jurisdiction when the court lacks the
statutory or constitutional power to adjudicate the
case.” Home Builders Ass'n of Miss., Inc. v.
City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.
1998) (quoting Nowak v. Ironworkers Local 6 Pension
Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). “Lack of
subject matter jurisdiction may be found in any one of three
instances: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.” Ramming
v. United States, 281 F.3d 158, 161 (5th Cir. 2001). A
court must accept all factual allegations in the
plaintiff's complaint as true when ruling on the motion
to dismiss for lack of subject matter jurisdiction. Den
Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d
420, 424 (5th Cir. 2001).