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Reiter v. AT & T

United States District Court, N.D. Texas, Dallas Division

April 5, 2018

SHONNA RENE REITER, Plaintiff,
v.
AT&T, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.

         By Special Order 3-251, this pro se case has been referred for full case management, including the determination of non-dispositive motions and issuance of findings of fact and recommendations on dispositive motions. Before the Court is Defendant's Amended Motion to Dismiss, filed October 17, 2017 (doc. 38). Based on the relevant filings and applicable law, the motion should be DENIED in part, and GRANTED in part.

         I. BACKGROUND

         On March 29, 2017, Shonna Rene Reiter (Plaintiff) filed suit against her former employer, AT&T (Defendant). (doc. 3 at 1, 4.)[1] Her amended complaint, filed on October 4, 2017, asserts claims under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act of 1990 (ADA) for alleged failure to accommodate her disability, failure to promote her, and wrongful termination of her employment. (doc. 37 at 3-4.)

         Plaintiff alleges that in 2007, she “completed and passed a corporate training class for management . . . and was the only person who achieved an A score, ” but was denied a management position and the ability to apply for other positions that she was told she would “be eligible to apply for.” (Id. at 4.) In 2012, while working as a Customer Service Technician for Defendant, Plaintiff sustained a back injury from a car accident. (Id. at 3, 5.) She alleges that Defendant did not accommodate her “documented disability despite the fact that male employees with lighter disabilities were regularly accommodated . . . .” (Id. at 4; doc. 41 at 6.) In June of 2014, her chiropractor determined that she “had a chronic serious health condition that recurred on an episodic basis and required continuing treatments.” (doc. 37 at 16, 19.) Plaintiff's chiropractor “found that when an episode occurred[, ] she was unable to perform” job functions involving raising her arms or prolonged neck extension, and that intermittent leave of approximately ten days per month would be medically necessary due to her condition. (Id. at 17, 19.) Plaintiff was approved to take unpaid leave under the Family and Medical Leave Act (FMLA) on November 21, 24-25, 2014 “for back adjustment, therapy and massage relating to [her] ongoing back injury.” (Id. at 5.)

         Defendant began an investigation into “alleged FMLA benefit misuse by [Plaintiff]” based on “an anonymous allegation [that] she owned a bar and worked there even when she was out on FMLA, ” and she was “followed and videotaped while on these approved unpaid leave days.” (Id. at 5, 8.) The investigation revealed that Plaintiff owned a sports bar in Arlington, Texas, and that she had “a pattern of being out multiple days at a time.” (Id. at 8.) It also revealed that: (1) on November 21, 2014, Plaintiff drove her personal vehicle to several locations, entered and exited the vehicle, and was observed at her sports bar “carrying a florescent bulb to the trash dumpster outside the bar”; (2) on November 24, 2014, Plaintiff went to her chiropractor's for about fifty minutes and eventually to her sports bar where she “was observed in the bar for about [one] hour and [fifty] minutes sitting at the bar and drinking [two] [b]loody [m]arys and couple of ‘shots'”; and (3) on November 25, 2015, Plaintiff went to a gas station and then to her sports bar for about fifteen minutes before heading toward Fort Worth, Texas, during which time she “was lost due to heavy pre-Thanksgiving traffic.” (Id. at 8-9.)

         On January 15, 2015, Plaintiff “was interviewed at her work location.” (Id. at 9.) She stated that during her leave days in November, “she could not work because of her medical condition, ” and that she took the days off “because she did not want to aggravate her condition and she did not feel safe driving a company vehicle if she was taking her medication.” (Id.) Based on the information revealed in the investigation, it was determined that there was a reasonable basis to believe that Plaintiff was not incapacitated during her November leave days, and that her “FMLA leave was therefore misused, in violation of Company policies.” (Id. at 9.)

         Plaintiff was terminated for FMLA fraud on April 21, 2015. (Id. at 5, 24-26.) She alleges she was given no previous warnings regarding any disciplinary issues. (Id. at 5.) She also alleges that Defendant stated that her efficiency in job performance decreased after her injury and “failed to acknowledge that [she] was refused equipment available to male employees to more efficiently perform [her] duties despite [her] disability.” (Id.) Plaintiff claims that other individuals were on FMLA leave as well, but were not investigated. (doc. 41 at 8.)

         Plaintiff submitted her intake questionnaire to the Equal Employment Opportunity Commission (EEOC) on November 28, 2015, and it was received on December 1, 2015. (doc. 41 at 1-2, 14-17.) She alleged discrimination based on sex, disability, and retaliation. (Id. at 15.) She asserted that her suspension on February 19, 2015, and her termination on April 21, 2015, were discriminatory. (Id.) She also asserted that her employer did not accommodate her disability after she requested changes. (Id. at 16.) Although Plaintiff alleges that she filed her Charge of Discrimination with the EEOC on November 30, 2015, the charge shows it was signed and received by the Texas Workforce Commission Civil Rights Division and the EEOC on November 30, 2016. (docs. 37 at 5; 41 at 21.) Her charge alleged discrimination based on her gender and disability because she was discharged on April 21, 2015 while out on medical leave. (doc. 41 at 21.) Plaintiff asserts that she received a Notice of Right to Sue letter on January 3, 2017. (doc. 37 at 5.)

         On October 4, 2017, Plaintiff filed her amended complaint in this suit. (doc. 37.) On October 17, 2017, Defendant filed an amended motion to dismiss. (doc. 38.) With a timely-filed response and reply, this motion is ripe for consideration. (docs. 41; 42.)

         II. RULE 12(b)(1)

         Defendant first moves to dismiss some of Plaintiff's claims under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. (doc. 39 at 2-5.)

         A. Legal Standard

         A motion to dismiss under Rule 12(b)(1) challenges a court's subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They “must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).

         A Rule 12(b)(1) motion “may be raised by a party, or a by a court on its own initiative at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07 (2006). A court must dismiss the action if it determines that it lacks jurisdiction over the subject matter. Fed.R.Civ.P. 12(h)(3); Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam). A dismissal under Rule 12(b)(1) “is not a determination of the merits, ” and it “does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction.” Id. Accordingly, considering Rule 12(b)(1) motions first “prevents a court without jurisdiction from prematurely dismissing a case with prejudice.” Id.

         A district court may dismiss for lack of subject matter jurisdiction based on: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981) (en banc). A motion to dismiss based on the complaint alone presents a “facial attack” that requires the court to merely decide whether the allegations in the complaint, which are presumed to be true, sufficiently state a basis for subject matter jurisdiction. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1998). “If sufficient, those allegations alone provide jurisdiction.” Id. Facial attacks are usually made early in the proceedings. Id. “A facial attack requires the court merely to decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction” by examining the allegations in the complaint, which are presumed to be true. Rodriguez v. Tex. Comm'n on the Arts, 992 F.Supp. 876, 878 (N.D. Tex. 1998) (citations omitted).

         If the defendant supports the motion with evidence, however, then the attack is “factual” and “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Williamson, 645 F.2d at 413. A factual attack may occur at any stage of the proceedings. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). Regardless of the nature of attack, the party asserting federal jurisdiction continually carries the burden of proof to show it exists. Ramming, 281 F.3d at 161.

         Here, Defendant relies solely on the complaint to support its motion to dismiss, so it presents a facial attack that does not require the resolution of factual matters outside the pleadings. See Williamson, 645 F.2d at 412-13.

         B. Title VII & ADA

         Title VII makes it unlawful for employers to discriminate against individuals with respect to their “compensation, terms, conditions, or privileges of employment, because of [their] race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Before an individual can pursue a Title VII claim in federal court, she must timely exhaust her available administrative remedies. Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002). This typically means that the complainant must first file the charge with the EEOC and receive a “right to sue” letter before filing suit. See 42 U.S.C. § 2000e-5(e)(1); Edelman v. Lynchburg College, 535 U.S. 106, 109 n.1 (2002).

         The ADA prohibits a covered entity from discriminating against a qualified individual with a disability because of that disability. 42 U.S.C. § 12112(a). Before filing suit against an employer for a violation of the ADA, an employee must comply with the ADA's administrative prerequisites. See Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996); see also Zavala v. Carrollton-Farmers Branch Indep. Sch. Dist., No. 3:15-CV-1413-B, 2015 WL 9269416 at *4 (N.D. Tex. Dec. 21, 2015). The ADA incorporates by reference the procedures applicable to actions under Title VII, including the requirement that a plaintiff file a timely charge with the EEOC, or with a state or local agency with authority to grant or seek relief from the alleged unemployment practice, and receive a “right to sue” letter prior to filing suit. See Dao, 96 F.3d at 789 (citing 42 U.S.C. §§ 12117(a), 2000e-5(e)(1)).

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