United States District Court, S.D. Texas, Houston Division
RENE G. HERNANDEZ, Plaintiff,
TIENDAS CUADRA U.S. LLC, Defendant.
MEMORANDUM AND OPINION
Hernandez has sued Tiendas Cuadra U.S. LLC, which owns and
operates retail stores selling leather goods, alleging that
Tiendas Cuadra discrimination on the basis of age, sex, and
race, in violation of Texas and federal law. Hernandez also
asserted a disability claim, with no supporting facts.
Tiendas Cuadra has moved to dismiss, arguing that
Hernandez's complaint does not sufficiently allege facts
to state a plausible claim of sex, race, or disability.
(Docket Entry No. 10). Hernandez has not responded. After a
careful review of the complaint, Tiendas Cuadra's
arguments, and the applicable law, the court grants the
motion to dismiss all claims but the age-discrimination
claim, with prejudice and without leave to amend. Hernandez
must amend her age discrimination claim, which is dismissed,
no later than June 24,
2019, or this case will be dismissed, with
prejudice. The reasons are explained in detail below.
court accepts the well-pleaded allegations as true for this
motion and considers also the EEOC charge attached to the
complaint. See Brand Coupon Network, L.L.C. v. Catalina
Mktg. Corp., 748 F.3d 631, 634-35 (5th Cir. 2014). In
July 2017, Tiendas Cuadra hired Hernandez as a
“Supervisor.” (Docket Entry No. 1-1 at 4).
Hernandez alleges that Tiendas Cuadra discriminated against
her because she was not from Mexico; was Muslim; was 48-years
old; and was female. (Docket Entry No. 1 at 3-4). Tiendas
Cuadra promoted “Mexican nationals” over her;
demoted and later fired her in January 2017 after she had
complained that “the company was reporting [inventory]
losses that were not true” and after she had refused a
pay reduction because of missing inventory. (Id.;
see Docket Entry No. 1-1 at 4).
Hernandez's discrimination charge filed with the EEOC in
February 2018, she alleged that a Tiendas Cuadra store
manager, Paul Cuevas, demoted her, fired her, and then hired
a 26-year-old woman to replace her. (Docket Entry No. 1-1 at
4). In October 2018, the Commission dismissed Hernandez's
charge because it was “unable to conclude that the
information obtained establishes violations of the
statutes.” (Id. at 2).
timely sued in federal court, asserting violations of the
Texas Commission of Human Rights Act (“TCHRA”);
the Age Discrimination and Employment Act; Title VII of the
Civil Rights Act; and the Rehabilitation Act. (Docket Entry
No. 1 at 4-7). Tiendas Cuadra moved to dismiss, arguing that
Hernandez failed to exhaust her administrative remedies for
her race-based discrimination and retaliation claims; Tiendas
Cuadra does not receive federal funding, as required for a
Rehabilitation Act claim; Hernandez has not alleged that she
participated in any protected activity, as required for a
retaliation claim; and Hernandez does not allege facts
supporting a plausible inference of sex discrimination.
(Docket Entry No. 10 at 10-20). Hernandez did not respond.
Tiendas Cuadra's arguments are considered in detail
The Legal Standard for Dismissal
12(b)(6) allows dismissal if a plaintiff fails “to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) must be read in
conjunction with Rule 8(a), which requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint
must contain “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). Rule 8 “does
not require ‘detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). “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 misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
“The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (citing Twombly, 550
U.S. at 556).
court should generally give a plaintiff at least one chance
to amend under Rule 15(a) before dismissing the action with
prejudice, unless it is clear that to do so would be futile.
See Carroll v. Fort James Corp., 470 F.3d 1171, 1175
(5th Cir. 2006) (“[Rule 15(a)] evinces a bias in favor
of granting leave to amend.” (quotation omitted));
Great Plains Tr. Co. v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 329 (5th Cir. 2002)
(“[D]istrict courts often afford plaintiffs at least
one opportunity to cure pleading deficiencies before
dismissing a case, unless it is clear that the defects are
incurable or the plaintiffs advise the court that they are
unwilling or unable to amend in a manner that will avoid
dismissal.”). A court may deny a motion to amend for
futility if an amended complaint would fail to state a claim
upon which relief could be granted. Pervasive Software
Inc. v. Lexware GmbH & Co. KG, 688 F.3d 214, 232
(5th Cir. 2012). The district court has discretion to grant
or deny leave to amend. Id.
The Rehabilitation Act Claim
Rehabilitation Act prohibits discrimination on the basis of
disability in federal agencies and federally funded
programs.” Powers v. Northside Indep. Sch.
Dist., 662 Fed.Appx. 306, 307 (5th Cir. 2016) (citing 29
U.S.C. § 794(a)). Because Hernandez has not alleged that
Tiendas Cuadra receives federal funding at all, much less in
any aspect involving her, her Rehabilitation Act claim is
dismissed. Because she fails to allege any disability at all,
and because she pleads no connection between any disability
and her demotion or termination, the claims are dismissed,
with prejudice, because the two problems make amendment
Title VII and the TCHRA, an employee must exhaust
administrative remedies before seeking judicial relief.
See McClain v. Lufkin Indus., Inc., 519 F.3d 264,
273 (5th Cir. 2008); Harris v. Honda, 213 Fed.Appx.
258, 261 (5th Cir. 2006). A private-sector employee satisfies
this requirement by timely filing a discrimination charge
with the EEOC. See McClain, 519 F.3d at 273;
Harris, 213 Fed.Appx. at 261. “In assessing
whether a charge properly exhausts a particular claim,
” a court “broadly” construes the charge,
but a claim is exhausted only “if it could have been
‘reasonably expected to grow out of the charge of
discrimination.'” Jefferson v. Christus St.
Joseph Hosp., 374 Fed.Appx. 485, 490 (5th Cir. 2010)
(alterations omitted) (quoting McClain, 519 F.3d at
has not exhausted her claims for race or religious
discrimination. Hernandez states that her action “is
brought to remedy discrimination on the basis of age, sex,
race, and retaliation.” (Docket Entry No. 1 at 1). She
alleged that Tiendas Cuadra was “persecuting her
because of her Muslim background.” (Id. at 3).
In Hernandez's discrimination charge, she checked age-
and sex-discrimination boxes, stating only that the Tiendas
Cuadra store manager demoted and fired her, and then hired a
“26-year-old woman.” (Docket Entry No. 1-1 at 4).
These allegations do not support a plausible inference of
race or religious discrimination that could have been
reasonably expected to grow out of the charge of
discrimination. Jefferson, 374 Fed.Appx. at 490. To
the extent that Hernandez asserts claims ...