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Shaw v. Helix Energy Solutions Group Inc.

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

July 12, 2019

FABIAN SHAW, COLLINS KWABENA, and DALE DUCLION, individually and on behalf of all others similarly situated, Plaintiffs,
v.
HELIX ENERGY SOLUTIONS GROUP, INC. Defendant.

          MEMORANDUM AND RECOMMENDATION

          FRANCES H. STACY, UNITED STATES MAGISTRATE JUDGE

         Pending in this case that has been referred for all further pretrial proceedings is Defendant's Motion for Dismissal of Class Action Claim and Certain Other Claims in Plaintiffs' First Amended Class Action Complaint (Document No. 15).[1] Having considered the motion, the response in opposition, the additional briefing, the allegations in Plaintiffs First Amended Class Action Complaint, and the applicable law, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that Defendant's Motion for Dismissal of Class Action Claim and Certain Other Claims in Plaintiffs' First Amended Class Action Complaint (Document No. 15) be GRANTED IN PART.

         I. Background

         This is an employment discrimination case. The three named Plaintiffs, Fabian Shaw ("Shaw"), Collins Kwabena ("Kwabena"), and Dale Duclion ("Duclion") were all employed by Helix Energy Solutions Group, Inc. ("Helix") and worked in various positions on two of Helix's drilling rigs, the Q5000 and the Q4000. Shaw and Kwabena are Black and Duclion is White. Shaw and Kwabena allege that they were passed over for various promotions in favor of less qualified White employees and were subjected to a racially hostile work environment. Duclion alleges that he was retaliated against, and others were promoted over him, after he complained to management about the racial discrimination he witnessed as against Shaw. Plaintiffs Shaw and Kwabena allege disparate treatment race discrimination claims against Helix under Title VII (count three), a hostile work environment claim against Helix under Title VII (count five), and a disparate impact race discrimination claim against Helix under Title VII (count six). Shaw, Kwabena and Duclion also allege retaliation claims against Helix under both § 1981 and Title VII (count two and count four). Finally, Plaintiffs allege, on behalf on themselves and a class of "all black persons employed or formerly employed by Defendant in the United States at any time from 2015 to the present, who have been, or continue to be, or may be in the future, adversely affected by Defendant's racially discriminatory employment policies and practices" claims of race discrimination under § 1981 (count one). Plaintiffs' First Amended Class Action Complaint (Document No. 11). Helix, in its Motion to Dismiss, seeks: (1) dismissal of the class action claim(s); (2) dismissal, on limitations grounds, of Shaw's Title VII claims and discrimination allegations that pre-date November 18, 2016, Shaw's § 1981 failure to promote claims and allegations that predate September 10, 2016, Kwabena's Title VII claims and discrimination allegations that pre-date November 15, 2016, and Kwabena's § 1981 failure to promote claims and allegations that pre-date September 10, 2016; and (3) dismissal of Shaw and Kwabena's disparate impact claims under Title VII.

         II. Rule 12(b)(6) Standard of Review

          Rule 12(b)(6) provides for dismissal of an action for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is said to be plausible if the complaint contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. Plausibility will not be found where the claim alleged in the complaint is based solely on legal conclusions, or a "formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. Nor will plausibility be found where the complaint "pleads facts that are merely consistent with a defendant's liability" or where the complaint is made up of'"naked assertions devoid of further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557)). Plausibility, not sheer possibility or even conceivability, is required to survive a Rule 12(b)(6) motion to dismiss. Twombly, 550 U.S. at 556-557; Iqbal, 129 S.Ct. at 1950-1951.

         In considering a Rule 12(b)(6) motion to dismiss, all well pleaded facts are to be taken as true, and viewed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). But, as it is only facts that must be taken as true, the court may "begin by identifying the pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 129 S.Ct. at 1950. It is only then that the court can view the well pleaded facts, "assume their veracity and [ ] determine whether they plausibly give rise to an entitlement to relief." Id. at 1950.

         III. Discussion - Class Action Claims

         Plaintiffs allege in their First Amended Class Action Complaint that Helix

has engaged in a continuing pattern of racial discrimination against black employees since 2008, and prior to that date. Defendant discriminates against black employees by (1) maintaining written and/or unwritten policies and practices for performance evaluations of employees that allowed biased and inconsistent determinations to the detriment of black employees; (2) maintaining written and/or unwritten policies and practices that utilize the inherently unreliable results of the evaluation system to make decisions on promotions and compensation; (3) maintaining written and/or unwritten policies and practices for determining compensation that rely on unduly discretionary decisions, resulting in unequal compensation for black employees; (4) maintaining written and unwritten policies and practices regarding promotions, transfers, and other internal hiring practices that allow supervisors to handpick white candidates over highly qualified black candidates; (5) denying black employees equal training, mentoring, and work assignments, preventing them from advancing within the company; and otherwise discriminating against black employees in the terms and conditions of their employment; and (6) failing to monitor and oversee employment and human resources practices and failing to provide adequate oversight of supervisors to ensure that Company policies are applied consistently and in a nondiscriminatory manner.

         Plaintiffs' First Amended Class Action Complaint (Document No. 11) at 9-10. These allegations, and others in the First Amended Class Action Complaint, provide the basis for the claim, in Count One, of "Discrimination against the Named Plaintiffs and the Class in Violation of § 1981." Defendant seeks the dismissal of that class action claim on the basis that: (1) there are no factual allegations about the proposed class - only allegations about the alleged discrimination against Shaw and Kwabena; (2) the class claims are based on a disparate impact discrimination theory which cannot, as a matter of law, be maintained under §1981; (3) Plaintiffs have not alleged any facts that would satisfy Fed.R.Civ.P. 23's commonality, typicality and numerosity requirements; and (4) the proposed class contains, or would contain, claims that are time-barred. While each of these arguments could independently support the dismissal of the class action claims, only two of the arguments will be discussed herein - the absence of particularized class-based allegations, and the absence of allegations that could satisfy the commonality and numerosity requirements of Fed.R.Civ.P. 23.

         Fed. R. Civ. P. 23(a) provides for the maintenance of a class action case if the following, minimum requirements are met:

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.

         If these initial four prerequisites are met, a separate inquiry is taken to determine if a class action is ...


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