Cisneros v. Utc Providers Austin, Inc.

MONICA CISNEROS v. UTC PROVIDERS - AUSTIN, INC. D/B/A UTC HEALTH &REHAB - AUSTIN

A-17-CV-593-RP

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

April 6, 2018

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE

Before the Court are Defendant's Rule 12(b)(6) Partial Motion to Dismiss Plaintiff's Claim under 42 U.S.C. § 1981 (Dkt. No. 20); Plaintiff's Response (Dkt. No. 24); and Defendant's Reply (Dkt. No. 25). The District Court referred the motion to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules.

I. GENERAL BACKGROUND

Plaintiff Monica Cisneros worked as a "Massage Therapist/Rehab Technician" for Defendant UTC Providers - Austin, Inc. from July 2010 until she was terminated on August 4, 2016. Dkt. No. 23 at ¶ 9.¹ Cisneros' country of origin is Mexico and her native language is Spanish. Cisneros alleges in her Second Amended Complaint that she was placed on a Performance Improvement Plan on May 31, 2016, for speaking Spanish at work. Specifically, Cisneros alleges that the PIP stated that she had to be "mindful of those around you who cannot understand the languages you speak" and that "[o]ur patient and employees must feel comfortable in a medical environment and mustnever feel excluded. Please do not use other languages in front of patients or employees that you are unsure of their language capability." Id. at ¶ 10. Cisneros contends that she only spoke Spanish while at work to other Spanish-speakers. On or around July 25, 2016, a co-worker of Cisneros' signed a verbal warning form stating that "Monica Cisneros continue [sic] to violate the Rehab policy on speaking Spanish on the Rehab floor." Id. at ¶ 11. On August 4, 2016, UTC terminated Cisneros' employment.

On June 19, 2017, Cisneros filed this lawsuit alleging (1) discrimination on the basis of national origin in violation of Title VII; (3) discrimination on the basis of race in violation of 42 U.S.C. § 1981; and (3) discrimination on the basis of race in violation of Texas Labor Code § 21.001. UTC moves to dismiss Cisneros' claims under 42 U.S.C. § 1981 for failure to state a claim. It argues that Cisneros fails to state a viable race discrimination claim because she does not allege discrimination based on her ancestry or ethnic characteristics.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for failure to state a claim upon which relief can be granted. In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, "[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the [nonmovant]." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted), cert. denied, 552 U.S. 1182 (2008). The Supreme Court has explained that a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable inference that the[movant] is liable for the misconduct alleged." Id. The court's review is limited to 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).

III. ANALYSIS

Cisneros' Amended Complaint alleges that UTC "intentionally discriminated against Plaintiff because of her race in violation of 42 U.S.C. § 1981 by unlawfully discharging her." Dkt. No. 23 at ¶ 20. Cisneros alleges that she was terminated for speaking Spanish at work and that the "decision to terminate her was motivated by her race." Id. Section 1981 provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1981. "Although § 1981 does not itself use the word 'race,' the [Supreme] Court has construed the section to forbid all 'racial' discrimination in the making of private as well as public contracts." Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609 (1987). Section1981 applies only to claims of race discrimination and does not apply to claims based "solely on the place or nation of [one's] origin." Udoewa v. Plus4 Credit Union, 457 F. App'x 391, 392 (5th Cir. 2012) (quoting St. Francis College at 613). "Section 1981 ensures that all persons have the same right to make and enforce contracts, including the making, performance, modification, and termination of employment contracts." Alvarado v. Shipley Donut Flour & Supply Co., 526 F. Supp. 2d 746, 753 (S.D. Tex. 2007).

To succeed on a § 1981 claim, a plaintiff must allege that (1) she is a member of a racial minority; (2) the defendant intended to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute. Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 386 (5th Cir. 2017), cert. denied, - S.Ct. - , 2018 WL 942520 (2018). "Although 'naked allegation[s]' of discriminatory intent are too conclusory to survive a motion to dismiss, discriminatory motive may be—and commonly is—demonstrated by circumstantial evidence." Id. (internal quotations omitted). The analysis of discrimination claims under §1981 is identical to the analysis of Title VII claims. Id.

UTC does not dispute that Cisneros has met the first and third factors; rather, UTC argues that Cisneros has failed to meet the second factor because she has not alleged sufficient facts to state a claim for race discrimination under § 1981. UTC argues that to constitute racial discrimination under § 1981 "the conduct alleged must be intentional and must be based on one's ancestry or ethnic characteristics." Dkt. No. 20 at 7. UTC contends that Cisneros' allegations "do not suggest discrimination on those grounds, but at best, allege that Plaintiff's termination may have been based on Plaintiff's conscious decision to speak in Spanish instead of English. This does not constitute race discrimination under Section 1981." Id. UTC contends that language is not an "immutable characteristic" and that "English Only" policies do not violate § 1981. It further argues that discriminating against an individual's language could never constitute race discrimination under the statute. Dkt. No. 25 at 2.

The Fifth Circuit has recognized that "[t]he line between national origin discrimination and racial discrimination is an extremely difficult one to trace" and in some contexts can be"indistinguishable." Bullard v. OMI Georgia, Inc., 640 F.2d 632, 634 (5th Cir. 1981).² As the Southern District of Texas has noted "[a]lthough Section 1981 protects only against discrimination on the basis of race, and not national origin, the term 'race' is interpreted so broadly in the case law as to functionally include national origin discrimination." Hammad v. Dynamo Stadium, LLC, No. 2015 WL 6965215, at *11 n. 14 (S.D. Tex. Nov. 10, 2015).

In Saint Francis College, the Supreme Court attempted to clarify what constitutes race discrimination under § 1981. There, a professor filed a discrimination complaint against the university alleging he was denied tenure because of his national origin and religion in violation of Title VII and under § 1981. The district court ruled that the § 1981 claim was barred because § 1981 does not cover discrimination based on Arabian ancestry. The plaintiff appealed, and the Court of Appeals held that the plaintiff had asserted a claim for race discrimination under § 1981. The Supreme Court agreed, holding that discrimination based on the plaintiff's Arabian ancestry was discrimination based on race. The Court found that in enacting § 1981, "Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics" and that "[s]uch discrimination is racial discrimination that Congress intended § 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory." Id. at 613. The Court further explained "[i]f respondent on remand can prove that he was subjected to intentional discriminationbased on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under § 1981." Id. In a concurring opinion, Justice Brennan noted that "the line between discrimination based on 'ancestry or ethnic characteristics,' and discrimination based on 'place or nation of . . . origin' is not a bright one." Id.

Several district courts have relied on the Supreme Court's reasoning in Saint Francis to find that discrimination based on an individual's accent or language can constitute race discrimination under § 1981. For example, in Keeler v. Brenntag Specialties, Inc., 177 F. Supp. 3d 1021, 1021 (S.D. Tex. 2016), the plaintiff, who was born in Puerto Rico and spoke "with a noticeable accent," sued his former employer for race discrimination under § 1981. The employer had allegedly complained that a former salesperson was ineffective due to his thick accent and had told plaintiff he preferred salespeople born in the United States. Like UTC, the employer had argued that the facts alleged in the complaint regarding accent...