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Howard v. Vantage International Management, LLC

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

May 21, 2019

Robert Howard, Plaintiff,
v.
Vantage International Management, LLC, ET AL., Defendant.

          MEMORANDUM AND RECOMMENDATION

          Christina A. Bryan, United States Magistrate Judge.

         This 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.

         I. Procedural Background

         Plaintiff Robert Howard filed this suit against Defendants[1] 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 Howard has voluntarily withdrawn his TCHRA claims.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 claim.

         II. Rule 12(b)(6) standards

         To 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.

         Generally, 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).

         III. Analysis

         The ADA 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).

         According 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 3-6.

         According 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.

         Because 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 and Reply:

• 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 ...

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