United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
the Court is defendant Taco Bell of America, LLC's motion
to dismiss. For the following reasons, the Court
denies the motion.
Lateisha Joseph was a general manager at a Taco Bell in
Kenner, Louisiana, from March 2012 to August
2015. In July 2015, she allegedly informed her
supervisor, Paula Shoemaker, of her pregnancy, and requested
certain accommodations. On August 15, Shoemaker allegedly told
plaintiff that plaintiff would need to take early
leave. On August 18, according to plaintiff,
Shoemaker gave her a “thirty-day action plan, ”
which set certain benchmarks for plaintiff's performance
and threatened plaintiff with termination if she failed to
meet those benchmarks. On August 19, plaintiff allegedly called a
Taco Bell employee hotline to complain about Shoemaker's
conduct. That same day, plaintiff asserts that she
presented to defendant a doctor's note for permanent home
rest. Plaintiff's leave was unpaid, and she
has not since returned to work.
filed a charge of discrimination on November 12,
2015. EEOC investigator Douglas Seamans handled
plaintiff's charge. Plaintiff alleges that defendant
falsely accused her of performance issues in its February
2016 response to the EEOC charge. According to plaintiff,
Seamans sent defendant's counsel an email on May 4, 2016,
indicating plaintiff's desire to return to
work. Plaintiff asserts that defendant never
responded to this email. In September 2016, plaintiff
allegedly received notice from the Louisiana Workforce
Commission indicating that defendant had refused to reinstate
her because of lack of work.
receiving her right to sue letter, plaintiff filed this Title
VII suit on October 29, 2017. Plaintiff initially asserted
claims for sex discrimination, racial discrimination, and
retaliation. Plaintiff filed an amended complaint as of right
on January 5, 2018,  and filed a second amended complaint on
February 28. On March 6, the Court granted
defendant's motion to dismiss plaintiff's racial
discrimination and retaliation claims, and gave plaintiff
leave to amend her retaliation claim. Plaintiff
filed her third amended complaint on March 25. Defendant now
moves to dismiss plaintiff's retaliation claim under
Federal Rule of Civil Procedure 12(b)(6).
survive a Rule 12(b)(6) motion to dismiss, plaintiffs must
plead enough facts 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, 547 (2007)). A claim is facially
plausible “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. at 678. A court must accept all well-pleaded
facts as true and must draw all reasonable inferences in
favor of the plaintiff. Lormand v. U.S. Unwired,
Inc., 565 F.3d 228, 239, 244 (5th Cir. 2009). But the
Court is not bound to accept as true legal conclusions
couched as factual allegations. Iqbal, 556 U.S. at
legally sufficient complaint must establish more than a
“sheer possibility” that the plaintiff's
claim is true. Id. It need not contain detailed
factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a
cause of action. Twombly, 550 U.S. at 555. In other
words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will
reveal evidence of each element of the plaintiff's claim.
Lormand, 565 F.3d at 257. If there are insufficient
factual allegations to raise a right to relief above the
speculative level, Twombly, 550 U.S. at 555, or if
it is apparent from the face of the complaint that there is
an insuperable bar to relief, Jones v. Bock, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325,
328 n.9 (5th Cir. 2007), the claim must be dismissed.
VII makes it unlawful for an employer to discriminate against
an employee who has opposed an employment practice made
unlawful by Title VII. 42 U.S.C. § 2000e-3(a). In order
to state a retaliation claim, a plaintiff must allege
“(1) that [she] engaged in activity protected by Title
VII, (2) that an adverse employment action occurred, and (3)
that a causal link existed between the protected activity and
the adverse action.” Raggs v. Miss. Power &
Light Co., 278 F.3d 463, 471 (5th Cir. 2002).
has alleged all three elements of a retaliation claim. First,
plaintiff alleges that she engaged in protected activity by
lodging an internal complaint through the employee hotline on
August 19, 2015, and by filing a charge of discrimination on
November 12, 2015. “An employee has engaged in
protected activity when she has (1) ‘opposed any
practice made an unlawful employment practice' by Title
VII or (2) ‘made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
or hearing' under Title VII.” Douglas v.
DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372
(5th Cir. 1998) (quoting 42 U.S.C. § 2000e-3(a)).
filing of a charge of discrimination was per se protected
activity. See Evans v. City of Houston, 246 F.3d
344, 352-53 (5th Cir. 2001). Internally complaining about an
employment practice may constitute protected activity, so
long as the complainant “reasonably believed the
employment practice to be unlawful.” EEOC v. Rite
Way Serv., Inc., 819 F.3d 235, 240 (5th Cir. 2016).
Plaintiff allegedly complained via the employee hotline that
her manager harassed her by forcing her to take early leave
for her pregnancy. It is plausible to infer that plaintiff
reasonably believed such conduct violates Title VII. See,
e.g., Fairchild v. All Am. Check Cashing, Inc.,
815 F.3d 959, 966 (5th Cir. 2016) (“[F]or a
pregnancy-based sex discrimination claim, an employer is
liable for disparate treatment, which occurs when the
employee's ‘protected trait actually motivated'
the employer to take the adverse employment action.”
(quoting Young v. United Parcel Serv., Inc., 135
S.Ct. 1338, 1345 (2015))); Langley v. State Farm Fire
& Cas. Co., 644 F.2d 1124, 1128 (5th Cir. 1981)
(suggesting that a mandatory early maternity leave policy may
violate Title VII).
suggests in her opposition to defendant's motion to
dismiss that her July 2015 request for accommodation also
qualifies as protected activity. A request for
accommodation of a disability may constitute protected
activity under the Americans with Disabilities Act (ADA).
See Tabatchnik v. Cont'l Airlines, 262 Fed.Appx.
674, 676 (5th Cir. 2008). But a request for accommodation
relates to an employment practice made unlawful by the ADA,
not Title VII. See 42 U.S.C. § 2000e-3(a);
see also Id. § 2000e-2(a) (Title VII makes it
unlawful to discriminate based on race, color, religion, sex,
and national origin). Thus, unlike plaintiff's internal
complaint and EEOC charge, her request for accommodation does
not constitute protected activity.
plaintiff alleges that she suffered an adverse employment
action when defendant failed to reinstate her. An adverse
employment action, for purposes of a retaliation claim, is
“an action that ‘a reasonable employee would have
found . . . [to be] materially adverse, which in this context
means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.'”
Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473,
484 (5th Cir. 2008) (quoting Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006)). This ...