United States District Court, E.D. Texas, Texarkana Division
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
W. SCHROEDER III UNITED STATES DISTRICT JUDGE.
above-entitled and numbered civil action was heretofore
referred to United States Magistrate Judge Caroline M. Craven
pursuant to 28 U.S.C. § 636. The Report of the
Magistrate Judge, which contains her proposed findings of
fact and recommendations for the disposition of such action,
has been presented for consideration.
April 12, 2018, the Magistrate Judge issued a Report and
Recommendation, recommending Defendant's Partial Motion
to Dismiss with Prejudice (Docket No. 17) be granted in part
and denied without prejudice in part. Specifically, the
Magistrate Judge recommended Plaintiff's “unsafe
and hazardous work environment” and “unfair
treatment' claims be dismissed. Otherwise, the Magistrate
Judge recommended Defendant's partial motion be denied
without prejudice to refiling.
date, no objections have been filed to the April 12, 2018
Report and Recommendation. As noted in the Report and
Recommendation, failure to file objections to the proposed
findings and recommendations contained in the report within
fourteen days after service bars an aggrieved party from de
novo review by the district court of those proposed findings
and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on
grounds of plain error or manifest injustice.
Court agrees with the Magistrate Judge's recommendation
that Plaintiff's “unsafe and hazardous work
environment” claim fails because the Occupational
Safety and Health Act does not create a private cause of
action for employees, and that even if it did,
Plaintiff's claim would fail for failure to exhaust
administrative remedies. The Court further agrees with the
Report that Plaintiff's unfair treatment claim is not an
independent cause of action, and instead, can be included in
an amended complaint as facts supporting Plaintiff's
claims for harassment, retaliation, and/or discrimination.
Lastly, the Court agrees that Plaintiff should re-plead the
remaining claims with further specificity, as detailed below.
being no grounds of plain error or manifest injustice, the
Court hereby ADOPTS the Report and
Recommendation of the United States Magistrate Judge as the
findings and conclusions of this Court. Accordingly, it is
that Defendant's Partial Motion to Dismiss with Prejudice
(Docket No. 17) is GRANTED-IN-PART as to
Plaintiff's “unsafe and hazardous work
environment” and “unfair treatment” claims
and DENIED-IN-PART without
prejudice as to Plaintiff's wrongful termination, age
discrimination, defamation, and invasion of privacy claims.
Plaintiff's unsafe and hazardous work environment and
unfair treatment claims are DISMISSED WITH
PREJUDICE It is further
that within thirty (30) days from the date of entry of this
Order, Plaintiff shall file a second amended complaint,
alleging all of the claims he is asserting, along with the
specific facts supporting each element of each claim.
Specifically, Plaintiff shall re-plead his wrongful
termination/breach of contract, age discrimination,
defamation, and invasion of privacy claims, as well as all
relevant claims and factual allegations necessary to support
those claims as alleged in the original complaint (i.e., sex
discrimination, sexual harassment, and retaliation).
Plaintiff is advised that once the second amended complaint
is filed, the Court will look only to that document and any
attachments thereto in review of any future claims on his
behalf. It is further
that in his second amended complaint, Plaintiff shall include
the following. Regarding his wrongful termination/breach of
contract claim, Plaintiff shall specifically allege whether
there was a valid employment contract between the parties and
whether the employee handbook referenced by Plaintiff in his
response alters the at-will relationship in a meaningful way,
and if so, in what specific way.
his disparate treatment age discrimination claim, Plaintiff
shall allege his age; how he was qualified for his position;
the adverse employment action that was Abut for" his
age; that he was replaced by someone younger or treated less
favorably than similarly situated younger employees (i.e., he
suffered from disparate treatment because of membership in
the protected class); who made the alleged comments regarding
his age and/or his wife's age; and the specific contents
of those comments.
his defamation claim, Plaintiff shall specifically allege the
time and place the alleged defamatory statements were made
and the recipients of the defamatory statements; whether the
alleged defamation was made while in the discharge of any
employee's duties for Defendant or in the furtherance of
Defendant's business, whether any employee acted
negligently as to the truth of the matters, and how the
statements were made with knowledge of their falsity or with
reckless disregard for the truth.
his invasion of privacy claim, Plaintiff shall allege what
private affairs or concerns Defendant intruded upon; how it
is highly offensive; and the damage suffered as a result of
Defendant's alleged intrusion.