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Gordon v. Federal IT Consulting, LLC

United States District Court, W.D. Texas, San Antonio Division

September 25, 2019

ALEX GORDON, Plaintiff,



         To the Honorable United States District Judge Fred Biery:

         This Report and Recommendation concerns Defendant Federal IT Consulting, LLC’s, Motion to Dismiss [#16]. The District Court referred all pretrial proceedings in this case to the undersigned for disposition pursuant to Rule 72 of the Federal Rules of Civil Procedure and Rules CV-72 and 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas [#12]. The undersigned has authority to enter this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

         In resolving Defendant’s motion, the undersigned has also considered Plaintiff’s pro se response [#21], Plaintiff’s pleadings, the governing law, and the arguments of the parties at the Court’s initial pretrial conference in this matter. For the reasons set forth below, it is recommended that Defendant Federal IT Consulting, LLC’s, Motion to Dismiss be GRANTED IN PART AND DENIED IN PART.

         I. Factual and Procedural Background

         This is an employment-discrimination case brought by Plaintiff Alex Gordon, proceeding pro se, against his former employer, Defendant Federal IT Consulting, LLC, a federal contractor. Plaintiff, an African-American male, sued Defendant, a San Antonio-based cyber security, information technology, and engineering-services firm, in the Eastern District of Virginia, asserting claims of discrimination and harassment (Count I), retaliation (Count II), defamation (Count III), breach of contract (Count IV), and violations of the Federal Acquisition Regulation, 48 C.F.R. § 1 (Count V)-the principal regulation governing federal executive agencies in the use of appropriated funds to acquire supplies and services. The case was subsequently transferred to this Court [#10]. Plaintiff alleges that Defendant hired him as a Cyber Systems Security Subject Matter Expert to work on a project for the U.S. Air Force at Langley Air Force Base in Hampton, Virginia. (Compl. [#1] at 6.) Plaintiff worked for Defendant from November 2016 until February 7, 2017, at which time he was discharged. (Id. at 6, 8.) Plaintiff claims that during his employment he was subjected to an ongoing pattern of hostility by a coworker identified as “Site Lead” in his Complaint. (Id. at 6.) Plaintiff alleges that, after he reported the Site Lead for manipulating timesheets and billing the government for time she was not at work, the Site Lead’s hostility toward him intensified, but that no retaliatory action was taken against her. (Id. at 6–7.) Thereafter Plaintiff alleges that the Site Lead made false statements that Plaintiff “physically intimated” her as a belligerent and threatening “Angry Black Man, ” which was part of her campaign to secure Plaintiff’s termination. (Id. at 8.)

         After Plaintiff’s termination, he filed a Charge of Discrimination with the Equal Employment Opportunity Commission and the Virginia Division of Human Rights, alleging race discrimination and retaliation. On March 21, 2018, the EEOC dismissed Plaintiff’s Charge and notified Plaintiff of his right to sue within 90 days from his receipt of the notice. Plaintiff filed this lawsuit on June 25, 2018.

         After the transfer of Plaintiff’s case to this district, Defendant filed the motion to dismiss that is the subject of this report and recommendation, arguing among other things that Plaintiff’s lawsuit is time-barred for failure to timely file within the 90-day statutory period. Plaintiff responded to the motion, and the motion is now ripe for this Court’s review.

         II. Governing Law

         Defendant moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings. To survive a Rule 12(b)(6) motion to dismiss, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this pleading standard, “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, 678 (2009) (quoting 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 misconduct alleged.” Id. Although a complaint does not need to contain “detailed factual allegations” to survive a motion to dismiss, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The allegations pleaded must show “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 A court considering a motion to dismiss must accept “all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Martin K. Eby Const. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004). While a court must accept all of the claimant’s well-pleaded facts as true, it is not bound to accept as true “conclusory allegations or allegations that merely restate the legal elements of a claim.” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (citing Iqbal, 556 U.S. at 678). In short, a claim should be dismissed only if a court determines that it is beyond doubt that the claimant cannot prove a plausible set of facts that support the claim and would justify relief. See Twombly, 550 U.S. at 570.

         Because Plaintiff is a pro se litigant, his pleadings are to be liberally construed and held to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, pro se litigants, like all other parties, must follow the Federal Rules of Civil Procedure. See Chhim, 836 F.3d at 469 (“We hold pro se plaintiffs to a more lenient standard than lawyers when analyzing complaints, but pro se plaintiffs must still plead factual allegations that raise the right to relief above the speculative level.”).

         III. Analysis

         Defendant moves to dismiss all of Plaintiff’s claims for failure to state a claim. Plaintiff’s response and affidavit attached thereto provide the Court with additional factual allegations in response to Defendant’s motion. In light of the requirement that this Court construe pro se pleadings liberally, Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Court treats Plaintiff’s response and affidavit as supplemental pleadings. The Court has therefore considered all of these documents in its review of the sufficiency of the pleadings in this case. After reviewing Plaintiff’s pleadings, the undersigned recommends that Defendant’s motion to dismiss be granted in part, and that Plaintiff’s Title VII claims should proceed, and his remaining claims dismissed.

         A. Plaintiff’s discrimination, harassment, and retaliation claims arising under Title VII should survive ...

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