United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM OPINION AND ORDER
PULLIAM UNITED STATES DISTRICT JUDGE
matter came before the Court on October 25, 2019, for hearing
upon Defendants' Rule 12(b)(6) Motion to
Dismiss Plaintiff's Second Amended Complaint for Failure
to State a Claim (ECF No. 23). Attorneys Kelly Elizabeth
Preston and Tiffany Cox Stacy appeared on behalf of
Defendants. Plaintiff Mary Ann Ellis appeared pro
se. Having considered Defendants' Motion, the
pleadings on record, and the arguments of the parties, the
Court grants the motion.
Basis of suit and grounds for dismissal
Mary Ann Ellis (“Ellis”) was employed by
Bluebonnet Foods, L.P., d/b/a GoodHeart Brand Specialty Foods
(“GoodHeart”) from January 6, 2017 until March 6,
2018 as a door monitor.Ellis is African American and was over
40 years of age when hired. Ellis claims GoodHeart retaliated
and discriminated against her based on her race, color,
national origin, and age in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”) and the
Age Discrimination in Employment Act (“ADEA”).
Defendants move to dismiss this action with prejudice.
Defendants argue Ellis failed to seek leave of Court to
allege retaliation, a claim which is nonetheless untimely.
Defendants further assert Ellis's discrimination claims
should be dismissed under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim because Ellis has not
alleged she was qualified to perform her job at the time of
her termination. Ellis opposes dismissal, asserting in oral
argument that she was always able to do her job.
presented with a motion to dismiss under Rule 12(b)(6), a
court generally “must assess whether the complaint
contains sufficient factual matter, accepted as true, to
state a claim for relief that is plausible on its
face[.]” United States v. Bollinger Shipyards
Inc., 775 F.3d 255, 257 (5th Cir. 2014)
(internal citations and quotation marks omitted). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007)). Although a plaintiff's factual
allegations need not establish the defendant is probably
liable, they must establish more than a “sheer
possibility” a defendant has acted unlawfully.
Id. Determining plausibility is a
“context-specific task, ” and must be performed
in light of a court's “judicial experience and
common sense.” Id. at 679. Where a plaintiffs
factual allegations do not provide enough information to
“nudge a claim across the line from conceivable to
plausible, [the] complaint must be dismissed.”
Twombly, 550 U.S. at 570; accord Iqbal, 556
U.S. at 678.
assessing a motion to dismiss under Rule 12(b)(6), the
court's review is generally limited to the complaint and
any documents attached to the motion to dismiss referred to
in the complaint and central to the plaintiffs claims.
Tellabs Inc. v. Makor Issues & Rights Ltd., 551
U.S. 308, 322 (2007); In re Katrina Canal Breaches
Litigation, 495 F.3d 191, 205 (5th Cir. 2007). When
reviewing the complaint, the “court accepts all
well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.” Martin K. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th
Cir. 2004) (internal quotation marks omitted) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
Second Amended Complaint alleges the following. Ellis was
hired by GoodHeart on January 6, 2017. ECF No. 20 at 3. At
the time of hire, Ellis advised the Human Resources
(“HR”) Director she had a previous back injury
and could not do heavy lifting. Id. at ¶ 12(b).
The HR Director assured Ellis her job did not require heavy
lifting. Id. Ellis alleges on or about the second
week of her employment, two female coworkers “verbally
abused” her in front of other coworkers, complaining
Ellis was issuing too many personal protective equipment
safety supplies. Id. at ¶ 12(c). Ellis alleges
she reported this encounter to HR. Id. Ellis alleges
she also explained to HR she had observed another employee
hiding safety supplies. Id.
alleges she told the nightshift supervisor in April 2017, she
was running out of safety supplies. Id. at ¶
12(d). Ellis alleges she told HR in April 2017, two
co-workers called her a “Black Ass Bitch” on many
occasions and in front of other co-workers. Id. at 4
¶ 12(e). Ellis alleges in May 2017, she was
“repeatedly moved back and forth from one side of the
plant to the other with no explanation as to why.”
Id. at ¶ 12(f). In response, Ellis inquired
with HR as to whether her move was racially motivated.
Id. HR then “attempted” to assure Ellis
her treatment-including the harassment and constant
movement-was not racially motivated. Id. at 4
8, 2017, Ellis received a chemical burn to her left hand
while pouring an unidentified chemical as ordered.
Id. at ¶ 12(h). Ellis reported the injury to
the night shift supervisor, and, on June 20, 2017, Ellis was
sent to the Texas Med Clinic. Ellis alleges she continues to
receive treatment for the injury. Id. at
¶¶ 12(h)(i). On September 8, 2017, Ellis was
informed her job requirements had changed. Id. at 4
¶ 12(j). On or about September 10, 2017, Ellis sent HR a
memo citing “clock in and out time” for August
and September.; “door monitor requirements;”
“file formal complaints.” Id. at ¶
12(k). Ellis alleges she submitted “Payroll
Inquiry” forms, on September 13, 20, and 29, 2017, the
“only forms available to register discrimination
complaints, ” in which she reported she was being
subjected to discrimination and a hostile work environment.
Id. at 4-5 ¶¶ 12(1)(m)(n). Ellis alleges
she did not receive any responses and “Defendants took
no corrective action.” Id. at 5 ¶ 12(n).
alleges on or about October 12, 2017, she filed a memo with
HR citing harassment, false accusations, and racial
discrimination. Id. at 5 ¶ 12(p). Ellis alleges
on or about October 17, 2017, she was written up for failing
to perform her job duties and failing to follow direction.
Id. at ¶ 12(q). Ellis alleges she was
“told to execute the document, which she refused”
and, she was not provided a copy. Id. Ellis was told
by HR not to return to work unless she obtained a full
medical release. Id. at ¶ 12(r). Ellis alleges
she was never asked to sign a statement requesting Leave
without Pay. Instead, Ellis was told to call in on a specific
phone number and at a specific time to report in.
Id. at 5 ¶ 12(q)(r). Ellis alleges on or about
November 2, 2017, she received a letter from HR with
instructions to obtain a Functional Capacity Evaluation
(“FCE”). Id. at ¶ 12(s).
about January 8, 2018, Ellis provided the FCE to GoodHeart,
which explained Ellis “does not meet the physical
demands of a Door Monitor as outlined by her employer”
and recommended Ellis “return to modified-duty work
activity” with the restrictions outlined in the report.
Id. at ¶ 12(t). See also 20-1 at 9. On
or about March 6, 2018, GoodHeart informed Ellis via letter
it had reviewed her FCE and was unable to accommodate her
without undue hardship. Id. at 5-6 ¶ 12(u). The
letter included a severance agreement, which informed Ellis
her employment would cease as of March 5, 2018. Id.
See also ECF No. 20-1 at 21-28.