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Ellis v. Bluebonnet Venison Farms, Inc.

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

October 29, 2019

MARY ANN ELLIS, Plaintiff,



         This 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.

         I. Basis of suit and grounds for dismissal

         Plaintiff 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.[1]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.

         II. Legal Standard

         When 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.

         In 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. 1999)).

         III. Plaintiffs Allegations

         Ellis's 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.

         Ellis 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 ¶¶ 12(f)(g).

         On June 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).

         Ellis 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).

         On or 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.

         IV. ...

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