United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Orthofix Medical, Inc.'s
Motion to Dismiss Plaintiff's First Amended Complaint
under Rule 12(b)(6) (Dkt. #27). After reviewing the motion
and the relevant pleadings, the Court finds that the motion
should be denied.
14, 2019, Plaintiff filed her Complaint, alleging
discrimination, hostile work environment, and retaliation
claims under Title VII against Options Medical and Defendant
Orthofix, Inc. (“Orthofix”) (Dkt. #1 at p. 7).
From approximately November 2016 until September 28, 2017,
Plaintiff was employed as a Junior Associate Territory
Manager by Options Medical in Gainesville, Florida, where she
traveled to doctors' offices in Florida to obtain
paperwork authorizing the use of Defendant Orthofix's
devices (Dkt. #1 at pp. 1, 4).
Title VII claims center around two, discrete sets of
events-one occurring entirely in Florida, the other occurring
entirely in Texas. First, Plaintiff claims that while working
as a Territory Manager for Options Medical in Florida, she
was subjected to severe and pervasive sexual harassment by a
Florida neurosurgeon who was one of Options Medical's
largest accounts (Dkt. #1 at p. 4). Plaintiff alleges she
reported this harassment and that this harassment was
witnessed by Options Medical's management, but Options
Medical did not investigate and took no remedial measures
(Dkt. #1 at p. 5). Plaintiff also alleges that Options
Medical encouraged her endure the Florida neurosurgeon's
harassment, retaliated against her for reporting it, and
subjected her to a constructive discharge (Dkt. #1 at pp.
alleges that the second set of events occurred around August
7, 2017, after she was sent to Texas for a product-training
event by Options Medical (Dkt. #1 at p. 6). The training was
at Defendant Orthofix's headquarters in Lewisville, Texas
(Dkt. #1 at p. 6). Plaintiff claims she discussed the Florida
neurosurgeon's harassment with Defendant Orthofix's
president at the training, but Orthofix did nothing to
investigate (Dkt. #1 at p. 6). Plaintiff then alleges that
the next night, Orthofix's president invited Plaintiff to
go to a night club with him, where he asked one of Plaintiff
s colleagues to inform Plaintiff that he would like to date
her (Dkt. #1 ¶ 26).
claims she was “Defendants' employee” at all
relevant times, but there are no facts in her complaint
indicating that she was ever employed by Defendant Orthofix
(Dkt. #1 at p. 3). Around February 2019, nearly two years
after Plaintiff stopped working for Options Medical,
Defendant Orthofix acquired Options Medical (Dkt. #1 at p.
19, 2019, Orthofix filed its Motion to Dismiss Plaintiffs
Original Complaint under Rule 12(b)(6) (Dkt. #5). On August
2, 2019, Plaintiff filed her response, arguing that
Orthofix's motion should be denied, or in the
alternative, that she be given leave to amend her complaint.
(Dkt. #13 at p. 10). Orthofix filed its reply on August 5,
2019 (Dkt. #15). Plaintiff filed her sur-reply on August 16,
2019, again requesting leave to amend her complaint should
the Court find it necessary (Dkt. #17 at p. 4).
Court granted Plaintiff leave to amend her Complaint on
September 12, 2019 (Dkt. #25). On September 25, 2019,
Plaintiff filed her First Amended Complaint (Dkt. #26). On
October 9, 2019, Defendant filed its Motion to Dismiss
Plaintiff's First Amended Complaint (Dkt. #27). Plaintiff
responded on October 23, 2019 (Dkt. #28), and Defendant
replied on October 30, 2019 (Dkt. #29).
Federal Rules of Civil Procedure require that each claim in a
complaint include a “short and plain statement . . .
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Each claim must include enough factual
allegations “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
12(b)(6) motion allows a party to move for dismissal of an
action when the complaint fails to state a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). When
considering a motion to dismiss under Rule 12(b)(6), the
Court must accept as true all well-pleaded facts in the
plaintiff's complaint and view those facts in the light
most favorable to the plaintiff. Bowlby v. City of
Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court
may consider “the complaint, any documents attached to
the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
The Court must then determine whether the complaint states a
claim for relief that is plausible on its face. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the [C]ourt to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). “But where the well-pleaded
facts do not permit the [C]ourt to infer more than the mere
possibility of misconduct, the complaint has alleged-but it
has not ‘show[n]'-‘that the pleader is
entitled to relief.'” Iqbal, 556 U.S. at
679 (quoting Fed.R.Civ.P. 8(a)(2)).
Iqbal, the Supreme Court established a two-step
approach for assessing the sufficiency of a complaint in the
context of a Rule 12(b)(6) motion. First, the Court should
identify and disregard conclusory allegations, for they are
“not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 664. Second, the Court
“consider[s] the factual allegations in [the complaint]
to determine if they plausibly suggest an entitlement to
relief.” Id. “This standard
‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary claims or elements.'” Morgan v.
Hubert, 335 Fed.Appx. 466, 470 (5th Cir. 2009) (citation
omitted). This evaluation will “be a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal,
556 U.S. at 679.
“[t]o 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