Guerrero v. Seafood

MEMORANDUM AND RECOMMENDATION

ANDREW M. EDISON UNITED STATES MAGISTRATE JUDGE

Pending before me is Defendants' Motion to Dismiss and for Summary Judgment. See Dkt. 71. Having reviewed the briefing, the record, and the applicable law, I recommend that the motion be DENIED without prejudice to refiling.

BACKGROUND

In May 2015, Plaintiff Elvyn Guerrero (“Guerrero”) began looking for a second, part-time job to supplement his income. His job search led him to a restaurant that he frequented sometimes: Mambo Seafood.^[1]

On May 28, 2015, Guerrero visited Mambo Seafood #6 and inquired about potential employment as a part-time server. He spoke with an employee wearing a manager name badge. Guerrero pointed to a young woman waiting tables and said he would like to work at Mambo Seafood “serving like that, like that young lady.” Dkt. 75-16 at 3. After speaking with her “higher boss, ” the employee returned to Guerrero and told him that he could not wait tables because “they want only waitresses.” Id. at 4.

The next day, Guerrero visited Mambo Seafood #7 and inquired about potential employment as a server. He asked a manager if the restaurant had “any open positions for waiter.” Id. at 6. The manager responded, “we don't hire waiters, just waitresses.” Id.

A short time later, ^[2] Guerrero visited Mambo Seafood #1 and inquired about potential employment as a server. He spoke with an employee wearing a manager name badge. When Guerrero asked the employee about the prospect of working as a waiter, the employee told him “[n]o, no, no there are definitely no waiters. Waiters do not exist here.” Id. at 9. Guerrero probed further, asking “Unless I wear a little skirt”? Id. The employee responded, “Yes.” Id.

Based on these interactions, Guerrero filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging that he was denied the opportunity to work in a “server position” at “all three (3) Mambo Seafood Restaurants because of [his] gender in violation of Title VII of the Civil Rights Act of 1964.” Dkt. 71-23 at 2.

After the EEOC issued Guerrero a right to sue letter, he filed this lawsuit. Guerrero's First Amended Complaint alleges that the Defendants violated his “civil rights in violation of Title VII, by intentionally interfering with his ability to obtain employment solely because of his gender.” Dkt. 9 at 4.

Defendants have moved to dismiss Guerrero's suit, claiming that he lacks standing. Defendants have also moved for summary judgment, attacking Guerrero's ability to establish a prima facie Title VII claim or demonstrate pretext as required under McDonnel Douglas.

THE LAW-OF-THE-CASE^[3]

In a typical case, this is where I would discuss the standard of review to be applied to Defendants' motions. However, I do not believe that Defendants' motions are ripe for consideration because discovery in this case has been hamstrung by a prior ruling issued on an incomplete record. Despite the so-called “law-of-the-case doctrine, ” I believe that ruling should be overruled and set aside, and discovery should be reopened.

The law-of-the-case doctrine “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983). “The law-of-the-case doctrine does not, however, set a trial court's prior rulings in stone, especially if revisiting those rulings will prevent error.” United States v. Palmer, 122 F.3d 215, 220 (5th Cir. 1997). This is true even where, as here, a successor judge replaces another judge. See Abecassis v. Wyatt, 7 F.Supp.3d 668, 671 (S.D. Tex. 2014) (“A successor judge may overrule a previous judge's order as long as the successor judge has a reason he or she deems sufficient.” (cleaned up)).

A significant issue in this case concerns the job title of the position that Guerrero sought at each Mambo Seafood location. In the Original Complaint and First Amended Complaint, Guerrero indicated that he sought a “server” position. See Dkts. 1, 9. Guerrero also referred to the job as a “server position” in his EEOC Charge of Discrimination. Dkt. 71-23 at 2. Moreover, in the transcripts memorializing his visit to each Mambo Seafood location, Guerrero referred to the job he sought as “server” or “waiter”-he, along with the Mambo Seafood

employees he talked to, seemed to use those two terms interchangeably. See Dkt. 75-16.

During this litigation, Defendants have disclosed that internally they do not refer to their employees as “servers.” Instead, they employ more descriptive terminology. Defendants refer to the employees who wait tables in the main dining area as “table servers.” Meanwhile, Defendants refer to those who work in the bar area as “bar servers.” This internal terminology has caused quite a bit of confusion in this case.

Before this matter was reassigned to Judge Hanks, Judge Atlas considered a discovery dispute concerning the distinction between “table servers” and “bar servers.” See Dkt. 53. On August 27, 2020, Judge Atlas wrote:

Plaintiff . . . wants Defendants to redo their discovery responses to distinguish between “table servers” and “bar servers.” This request is denied. Plaintiff throughout the administrative process and throughout this lawsuit has asserted that he