Davis v. ComputerShare Loan Servs.

1

TIFFANY DAVIS, Plaintiff, v. COMPUTERSHARE LOAN SERVICES, Defendant.

Civil Action No. 4:23-CV-1542

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

November 8, 2023

MEMORANDUM AND RECOMMENDATION

Christina A. Bryan, United States Magistrate Judge.

Before the Court is Defendant's Rule 12(b)(6) Motion to Dismiss Plaintiff's Complaint.^[1] ECF 9. Plaintiff, who is proceeding pro se, has not filed a response. For the reasons explained below, the Court RECOMMENDS that Defendant's Motion (ECF 9) be GRANTED, and that Plaintiff's claims be dismissed with prejudice.

I. Factual and Procedural Background.

Plaintiff was employed as a mortgage processor by Defendant ComputerShare Loan Services beginning on January 11, 2021. ECF 1-2 at 1. In March 2021, Plaintiff was diagnosed with Huntington's disease. Id. Plaintiff disclosed her diagnosis to Defendant on March 18, 2021 and inquired about medical leave. Id. Plaintiff alleges that the medical leave procedures were not explained to her and that Defendant's employee who served as her contact for the leave began refusing her phone calls. Id. Plaintiff took a leave of absence starting on April 19, 2021 and also opened a claim for short-term disability leave. Id. However, Plaintiff alleges she returned to work on April 22, 2021 because she feared for her job. Id. When she returned to work, she was told by Defendant's representative that she had until April 30, 2021 to submit a required return-to-work clearance from her doctor. Id. Plaintiff alleges her computer access was discontinued on April 23, 2021 and she was terminated on April 26, 2021 despite being told she would have until April 30 to obtain the return-to-work clearance. Id.

Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on December 28, 2021. ECF 9-3 at 2. She received a right to sue letter on March 23, 2022. ECF 1 at 5, 7. Plaintiff then filed a charge with the Texas Workforce Commission (“TWC”) on April 25, 2022. ECF 9-2.

On June 21, 2022, Plaintiff filed a complaint against Defendant asserting disability discrimination, failure to accommodate, and retaliation under the Americans with Disabilities Act (“ADA”). See Davis v. Computershare Loan Servs., No. 4:22-CV-02010 (S.D. Tex. June 21, 2022) (J. Lake). She also identified “slander and libel” as wrongful acts of Defendant. Id. Plaintiff's first complaint was dismissed without prejudice for failure to prosecute on October 17, 2022. Id. at ECF 3, ECF 4.

On April 26, 2023, Plaintiff initiated the instant complaint alleging the same claims against Defendant. ECF 1. Defendant filed a Rule 12(b)(6) Motion to Dismiss Plaintiff's Complaint. ECF 9. Plaintiff failed to file a response.

II. Rule 12(b)(6) Legal Standards.

Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a cause of action in a complaint when it fails “to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). In reviewing a motion to dismiss under Rule 12(b)(6), this Court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. Alexander v. AmeriPro Funding, Inc., 848 F.3d 698, 701 (5th Cir. 2017) (citation omitted). However, “it will not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.” Arnold v. Williams, 979 F.3d 262, 266 (5th Cir. 2020) (citation omitted). In deciding a Rule 12(b)(6) motion to dismiss, “[t]he 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.” Allen v. Vertafore, Inc., 28 F.4th 613, 616 (5th Cir. 2022) (citation omitted). The Court applies a more lenient standard when analyzing the complaints of pro se plaintiffs, but they “must still plead factual allegations that raise the right to relief beyond the speculative level.” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (citation omitted).

Under Southern District of Texas Local Rules, the Court may construe a failure to respond to a motion to dismiss as Plaintiff having no opposition to the motion. LOC. R. S.D. TEX. 7.4. Even so, a plaintiff's claims may not be dismissed with prejudice based solely on the lack of response. See Hansen v. Protective Life Ins. Co., 642 F.Supp.3d 587, 597 (S.D. Tex. 2022) (“While recognizing that Local Rule 7.4 allows a court to construe a party's failure to respond as a representation of no opposition, the Fifth Circuit has said that where the motion is dispositive, ‘[t]he mere failure to respond to a motion is not sufficient to justify a dismissal with prejudice.'”) (quoting Watson v. United States ex rel. Lerma, 285 Fed.Appx. 140, 143 (5th Cir. 2008)). Instead, “a proper sanction for a failure to respond to a dispositive motion is for the court to decide the motion on the papers before it.” Id. (citing Ramsay v. Bailey, 531 F.2d 706, 709 n.2 (5th Cir. 1976)).

III. Analysis.

Defendant moves for dismissal with prejudice of all of Plaintiff's claims, arguing that: (A) any ADA claims, or similar federal discrimination or retaliation claims, are time-barred; (B) Plaintiff has not exhausted administrative remedies for any state law discrimination or retaliation claims; and (C) Plaintiff has failed to sufficiently plead slander or libel claims. ECF 9 at 9. The Court addresses each argument in turn.

A. Plaintiff's ADA claims are time-barred and should be dismissed with prejudice.

After receiving a right-to-sue letter, a plaintiff wishing to file a civil action in federal court must do so within ninety days. See 42 U.S.C. § 2000e-5(f)(1).^[2] In this case, Plaintiff received a notice of right to sue from the EEOC on March 23, 2022. ECF 1 at 5, 7. Plaintiff then timely filed her first lawsuit on June 21, 2022. See Davis v. ComputerShare Loan Servs., No. 4:22-CV-02010 (S.D. Tex. June 21, 2022) (J. Lake). The first lawsuit, however, was dismissed without prejudice for failure to prosecute on October 17, 2022. Id. at ECF 3, ECF 4. Plaintiff filed the instant lawsuit on April 26, 2023. ECF 1.

Although “pro se complaints are held to less stringent standards,” courts nonetheless strictly construe the pre-filing requirements. Taylor v. Books A Million, Inc., 913 F.3d 376, 378-79 (5th Cir. 2002). Indeed, the Fifth Circuit has affirmed dismissals of cases in which a plaintiff missed the ninety-day period by just one or two days. See, e.g., id. (affirming dismissal of suit filed one day after the ninety-day period expired); Ringgold v. Nat'l Maint. Corp., 796 F.2d 769, 770 (5th Cir. 1986) (affirming dismissal of suit filed two days after the ninety-day period expired).

Accordingly, a complaint filed more than ninety days after the plaintiff's receipt of the EEOC notice must be dismissed as time-barred under Rule 12(b)(6) unless the plaintiff “establishes, for some justifiable reason, that the limitations period should be equitably tolled.” Bowers v. Potter, 113 Fed.Appx. 610, 613 (5th Cir. 2004). Therefore, absent a justifiable basis for equitable tolling of the ninety-day period, Plaintiff's claims are time-barred.

The Fifth Circuit has identified three potential bases for equitable tolling: “(1) the pendency of a suit between the same parties in the wrong forum; (2) the plaintiff's lack of awareness of the facts supporting his claim because of the defendant's intentional concealment of them; and (3) the EEOC's misleading the plaintiff about his rights.” Stokes v. Dolgencorp, Inc., 367 Fed.Appx. 545, 548 (5th Cir. 2010) (citing Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 880 (5th Cir. 2003)). The dismissal of Plaintiff's first timely-filed lawsuit does not toll the ninetyday deadline for this case. See Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992) (“If a Title VII complaint is timely filed ... and is later dismissed, the timely filing of the complaint does not toll the ninety-day limitations period.”); accord Price v. Digital Equip. Corp., 846 F.2d 1026, 1027 (5th Cir. 1988) (per curiam). Further, Plaintiff has not identified any facts that could support equitable tolling of the ninety-day period.

Because Plaintiff failed to initiate this lawsuit within the required ninety-day period and has failed to provide facts that support equitable tolling, the Court concludes that Plaintiff's ADA claims are time-barred. Leave to amend time-barred claims would be futile so Plaintiff's ADA claims should be dismissed with prejudice. See Matter of Life Partners Holdings, Inc., 926 F.3d 103, 125 (5th Cir. 2019) (explaining that a plaintiff should be given an opportunity to amend a deficient pleading unless the court determines that leave to amend would be futile).

B. Plaintiff's TCHRA claims should be dismissed with prejudice for failure to timely exhaust administrative remedies.

In an attachment to her Complaint, Plaintiff alleges she was wrongfully terminated in violation of the Texas Commission on Human Rights Act (“TCHRA”), or Chapter 21 of the Texas Labor Code.^[3] ECF 1-2. The Texas Labor Code requires a plaintiff claiming employment discrimination or retaliation to properly exhaust administrative remedies by first filing an administrative complaint with the Texas Workforce Commission (“TWC”). Hinkley v. Envoy Air Inc., 968 F.3d 544, 552 (5th Cir. 2020) (citing TEX. LAB. CODE § 21.201(a)). The deadline for filing an administrative complaint with the TWC is no later than 180 days after the alleged unlawful employment practice occurred. TEX. LAB. CODE § 21.202(a). A plaintiff may satisfy the Texas Labor Code's filing requirement by filing a charge with the EEOC, but the 180-day time limit still applies. Doe v. Univ. of Tex. M.D. Anderson Cancer Ctr., __...