United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND RECOMMENDATION
Christina A. Bryan, United States Magistrate Judge.
employment dispute is before the court on Defendants'
Partial Rule 12(b)(6) Motion to Dismiss with Prejudice. Dkt.
10. Having considered the parties' submissions and the
law, the court recommends that the motion be denied.
Robert Howard filed this suit against
Defendants on November 2, 2018 alleging violations of
the Americans with Disabilities Act (ADA), Age Discrimination
in Employment Act (ADEA), and Texas Commission on Human
Rights Act (TCHRA). Defendant moves to dismiss the ADA and
TCHRA claims. Dkt. 10. Howard has voluntarily withdrawn his
TCHRA claims. Dkt. 13 at 8, n.1; Dkt. 12 (Second Amended
Complaint); Dkt. 22 (Third Amended Complaint). Therefore,
this Memorandum and Recommendation addresses only the ADA
Rule 12(b)(6) standards
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the conduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Gonzalez v. Kay, 577 F.3d 600, 603 (5th
Cir. 2009). In reviewing a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), this Court accepts all
well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff. Alexander v. AmeriPro
Funding, Inc., 848 F.3d 698, 701 (5th Cir.
2017) (citing Martin K. Eby Constr. Co. v. Dallas Area
Rapid Transit, 369 F.3d 464, 467 (5th Cir.
2004)). However, the court does not apply the same
presumption to conclusory statements or legal conclusions.
Iqbal, 556 U.S. at 678-79.
the court may consider only the allegations in the complaint
and any attachments thereto in ruling on a Rule 12(b)(6)
motion. However, the court may take judicial notice of public
documents, and may also consider documents a defendant
attaches to its motion to dismiss under 12(b)(6) if the
documents are referenced in the plaintiff's complaint and
central to the plaintiff's claims. See Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 499
(5th Cir. 2000); King v. Life Sch., 809
F.Supp.2d 572, 579 n.1 (N.D. Tex. 2011); Norris v. Hearst
Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007).
In this case, the court considers Plaintiff's Third
Amended Complaint (Dkt. 22), the EEOC Notice of Charge of
Discrimination attached to Defendants' motion (Dkt. 10 at
9-14), and the EEOC's September 22, 2015 letter to
Plaintiff's counsel attached to Defendants' reply
(Dkt. 14-1 at 1-2).
prohibits an employer from discriminating against a qualified
individual on the basis of disability by terminating his
employment, among other things. Moss v. Harris Cty.
Constable Precinct One, 851 F.3d 413 at 417
(5th Cir. 2017). As a pre-condition to filing
suit, the ADA requires a terminated employee to file a formal
charge of discrimination with the EEOC within 300 days of his
termination. Ramirez v. City of San Antonio, 312
F.3d 178, 181 (5th Cir. 2002) (citing 42 U.S.C.
§ 12117, which incorporates 42 U.S.C. §2000e-5(1)).
The pre-condition is intended to trigger an EEOC
investigation and conciliation process that encourages
voluntary compliance and eliminates discriminatory practices.
Ajaz v. Cont'l Airlines, 156 F.R.D. 145, 147
(S.D. Tex. 1994).
to Defendants, Howard did not file a formal charge of
discrimination with the EEOC until September 16, 2015, 383
days after he was fired. Defendants contend that Howard's
February 20, 2015 filing of an unverified Intake
Questionnaire fails to satisfy the requirements of a
“charge” under the ADA. Dkt. 10 at 3-5, Dkt 14 at
to the allegations in the pleadings, Howard filed his Intake
Questionnaire within 148 days of termination but did not file
a formal charge until more than 300 days after termination.
Howard argues that the Intake Questionnaire qualifies as a
“charge, ” or in the alternative, the filing of
the formal charge on September 16, 2015 relates back to the
date of the filing of his Intake Questionnaire on February
20, 2015, which was within 300 days of his termination. Dkt.
13 at 15-21. The Defendants respond that an Intake
Questionnaire cannot constitute a charge under the ADA
because it is not verified. Dkt. 14 at 3-6.
the issue before the court involves the timing and
sufficiency of Plaintiff's filings with the EEOC, the
court sets forth the timeline below for ease of reference and
clarity. The timeline consists of Plaintiffs allegations in
the Third Amended Complaint and information contained in the
documents attached to the Defendant's Motion to Dismiss
• September 25, 2014: Defendants terminate Howard.
• February 20, 2015: 148 days after termination, Howard
submits an Intake Questionnaire explaining his claims and
checking Box 2 ...