Boshears v. Polaris Eng'g

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TANIA KATRISSE HACKETT BOSHEARS, et al., Plaintiffs. v. POLARIS ENGINEERING, et al., Defendants.

Civil Action No. 3:22-cv-00053

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

March 27, 2023

MEMORANDUM AND RECOMMENDATION

ANDREW M. EDISON UNITED STATES MAGISTRATE JUDGE

Plaintiff Tania Katrisse Hackett Boshears (“Boshears”) brings claims for relief under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”). In response Defendants Polaris Construction, Inc. and Polaris Engineering, Inc. (collectively, “Polaris”) have moved to dismiss the Third Amended Complaint. See Dkt. 23. Polaris advances two main arguments. First, Polaris claims that Boshears's claims are time-barred because she failed to file her lawsuit in federal court within 90 days after receipt of the right-to-sue letter issued by the Equal Employment Opportunity Commission (“EEOC”). Second, in the event I conclude that Boshears's claims are not time-barred, Polaris contends that Boshears has failed to state a cognizable claim for employment discrimination or retaliation under the ADA.

FACTUAL BACKGROUND

This is an employment discrimination/retaliation case. Polaris provides engineering, procurement, and construction services worldwide for the refining and petrochemical industries. In August 2019, Polaris hired Boshears to work as a Pipe Foreman on a large-scale construction project in Galveston, Texas. In that role, Boshears managed a team of 11 employees. Polaris also hired Boshears's husband, James, to work as a Lead Construction Superintendent on the project.

In the Third Amended Complaint, Boshears avers that James had a heart condition. Boshears says that on December 20, 2019 James felt sharp pains in his chest while working and went to the hospital for treatment. Polaris's Site Safety Manager allegedly told Boshears “to tell the doctor not to include in James's medical release that the [Emergency Room] visit was heart related.” Dkt. 22 at 9. According to the live pleading Polaris's Site Safety Manager then improperly disclosed James's medical information to another Polaris employee in violation of the ADA.

On March 17, 2020, Polaris terminated Boshears's employment. Polaris maintains that the termination was due to a reduction-in-force. Boshears contends otherwise, alleging that her termination was unlawful for a number of independent reasons. First, she contends that that she was discriminated against as a result of (i) her age (40 years old); (ii) her gender (female); and (iii) her association with her husband, who is a qualified individual with a disability under the ADA. In connection with these claims, Boshears asserts that Polaris replaced her with two younger, male employees who did not have relatives with a disability. Second, Boshears alleges that Polaris retaliated against her in violation of the ADA because her husband “engaged in protected opposition to disability discrimination.” Id. at 22.

Boshears and her husband each filed their own, separate lawsuit against Polaris. On March 8, 2023, those two lawsuits were consolidated. See Dkt. 32. Today, I simply address whether the claims brought by Boshears in her Third Amended Complaint are sufficient to survive a challenge under Federal Rule of Civil Procedure 12(b)(6).

RULE 12(b)(6) LEGAL STANDARD

Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The United States Supreme Court has emphasized that the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Rule 8 “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “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. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Ultimately, a Rule 12(b)(6) motion to dismiss “is viewed with disfavor and is rarely granted.” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quotation omitted).

ANALYSIS

A. Boshears's Claims for Relief Are Not Time-Barred Based on a Review of the Live Pleading

Before an individual claiming employment discrimination may pursue such a claim in federal court, she first must exhaust her administrative remedies by filing a charge of discrimination with the EEOC. See Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002). The employment discrimination statutes at issue in this case-Title VII, the ADEA, and the ADA-all provide that “[a] plaintiff alleging employment discrimination must file a civil action no more than ninety days after she receives statutory notice of her right to sue from the EEOC.” Duron v. Albertson's LLC, 560 F.3d 288, 290 (5th Cir. 2009); see also 42 U.S.C. § 2000e-5(f)(1) (Title VII); 29 U.S.C. § 626(e) (ADEA); 42 U.S.C. § 12117(a) (ADA). “[T]he ninety-day limitation period is strictly construed” and “begins to run on the date that the EEOC right-to-sue letter is received.” Taylor, 296 F.3d at 379 (emphasis in original).

Because “[a] statute of limitations may support dismissal under Rule 12(b)(6) where it is evident from the plaintiff's pleadings that the action is barred,” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003), I must start my analysis by looking at the plain language of the Third Amended Complaint. In that document, Boshears unequivocally states that her counsel did not receive a copy of the right-to-sue letter until November 22, 2021:

[O]n November 10, 2021, counsel for Plaintiff requested that the EEOC issue her a Notice of Right [to] Sue. That same day, the EEOC advised counsel for Plaintiff that “[t]he request will be processed and once the right to sue is uploaded into the portal an electronic notification will be sent notifying the parties they have access to the document.” On November 22, 2021, the EEOC notified counsel for Plaintiff by email of the issuance of an important document, the Notice of Right to Sue. The Notice of Right to Sue received by counsel for Plaintiff was neither signed nor dated. Copies of the November 22, 2021 email and the EEOC's undated and unsigned Notice of Right to Sue are attached as Exhibit “A.” Plaintiff files this lawsuit within ninety (90) days of . . . her counsel receiving the undated and unsigned Notice of Right to Sue.

Dkt. 22 at 3-4. If, as alleged in the Third Amended Complaint, Boshears's counsel first received the right-to-sue letter on November 22, 2021, Boshears had until February 21, 2022 to timely file her lawsuit.^[1] She filed her original complaint on February 15, 2022, which means it was timely filed-assuming I credit the assertions set forth in Boshears's live pleading as to when her counsel received notice of the right-to-sue letter.

Polaris argues that instead of limiting myself to the text of the Third Amended Complaint, I should also look at various “records received by . . . Polaris in response to a Freedom of Information Act request sent to the EEOC regarding [Boshears's] EEOC Charge” Dkt. 23 at 4 n.3. Polaris attaches to its Motion to Dismiss these documents, which include a 17-page “Charge Detail Inquiry.” See Dkt. 23-4 at 6-22. Polaris contends that the Charge Detail Inquiry indicates that the EEOC issued its right-to-sue letter on November 15, 2021, and that Boshears's attorney received the letter the same day via electronic mail through the EEOC Portal. If Boshears did, in fact, receive the right-to-sue letter on November 15, 2021, she would have had 90 days from that date-that is, until February 14, 2022^[2]-to file a lawsuit against Polaris. Because this lawsuit was not filed until February 15, 2022, Polaris argues that Boshears's claims for relief under the various employment-related statutes are time-barred.

“In determining whether a plaintiff's claims survive a Rule 12(b)(6) motion to dismiss,” courts are limited to considering the following factual information: “(1) the facts set forth in the complaint, (2) documents attached to or incorporated by reference in the complaint, and (3) matters of which judicial notice may be taken”. Spears v. Nanaki, L.L.C., No. 22-30460, 2023 WL 2493741, at *1 (5th Cir. Mar. 14, 2023). The Charge Detail Inquiry clearly does not fall within the first two categories as it is not discussed in, attached to, or incorporated by reference in the live complaint. The question thus becomes whether I should take judicial notice of the Charge Detail Inquiry.

Federal Rule of Evidence 201 provides that certain facts are subject to judicial notice. “The doctrine of judicial notice permits a judge to consider a generally accepted or readily verified fact as proved without requiring evidence to establish it.” U.S. v. Berrojo, 628 F.2d 368 369 (5th Cir. 1980). I am fully aware that many federal courts across this great nation regularly take judicial notice of EEOC filings at the motion to dismiss stage. See, e.g., Prewitt v. Cont'l Auto., 927 F.Supp.2d 435, 447-48 (W.D. Tex. 2013) (collecting cases); Smith v. City of Atl. Beach, No. 3:18-cv-1459, 2020 WL 708145, at *1 (M.D. Fla. Feb. 12, 2020) (same). I am...