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Dunn v. Apache Industrial Services, Inc.

United States District Court, E.D. Louisiana

December 24, 2018

GERALDINE DUNN
v.
APACHE INDUSTRIAL SERVICES, INC. ET. AL.

         SECTION: "B"(2)

          ORDER AND REASONS

         Before the Court is Defendant Apache Industrial Services, Inc.'s (“Defendant Apache”) Motion to Dismiss (Rec. Doc. 15), Plaintiff Geraldine Dunn's Response in Opposition (Rec. Doc. 40), and Defendant Apache's Reply (Rec. Doc. 47). For the reasons discussed below, IT IS ORDERED that Defendant Apache's motion to dismiss is GRANTED.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff is approximately 40-years old and a resident of the parish of East Baton Rouge, Louisiana. See Rec. Doc. 1 at 2. In or around June 2016, she was employed as a bus driver and painter for Defendant Apache, a foreign corporation with its principal place of business in Texas and subcontractor for Defendant Phillips 66 Company (“Defendant Phillips”). See id. at 3. Plaintiff alleges that Defendant Apache, along with Defendant Phillips, discriminated against her, retaliated against her, and wrongly terminated her. See id.

         On or around August 8, 2016, Plaintiff began working a turnaround job for Defendant Apache. See id. Plaintiff, who claims approximately 15 years of experience, alleges that she was earning $19.00 per hour while her male counterparts were earning $23.00 per hour. See id. Plaintiff further alleges that she spoke with management about raising her hourly pay to $23.00 on more than one occasion. See id. She was told that her hourly pay would be increased to $23.00 but she never received an increase. See id. She states that she was subsequently subjected to harassment and discrimination. See id. Specifically, she states that she was forced to performed additional duties that other male employees were not required to perform and yelled at in front of other male employees.[1] See id. at 4.

         On or around October 13, 2016, Plaintiff filed an Equal Employment Opportunity Commission (“EEOC”) Charge of Discrimination (“October 2016 Charge”) alleging unfair treatment. See id. On or around October 24, 2016, Plaintiff attended a meeting with safety management to discuss knee pain. See id. She was given two days off from work. See id. She returned to work on October 27, 2016 and was terminated. See id. Plaintiff “believes that she was terminated in retaliation and as a result of her filing an EEOC Charge of [D]iscrimination.[2]See id.

         On November 28, 2016, Plaintiff filed another EEOC Charge of Discrimination (“November 2016 Charge”) alleging gender discrimination, retaliation, and unequal pay. See id. at 5. Plaintiff explained the facts surrounding her allegations (being paid less than her male counterparts and yelled at by her male supervisor) and named Defendant Apache as the employer that discriminated against her. See Rec. Doc. 15-3 at 1.

         On January 4, 2017, Plaintiff filed another EEOC Charge of Discrimination (“January 2017 Charge”) alleging retaliatory wrongful termination. See Rec. Doc. 1 at 13-14. Plaintiff explained the facts surrounding her allegation (that she filed an EEOC Charge of Discrimination and subsequently was discharged) and named Defendant Apache as the employer that discriminated against her. See Rec. Doc. 15-3 at 1. Plaintiff also mentioned that she was told she was being discharged because “[Defendant Phillips] did not want [her] on their property” and that she thought she was being discharged “in retaliation for filing [November 2016 Charge] . . ..” Rec. Doc. 15-4 at 1.

         On August 20, 2017, Plaintiff received a “Dismissal and Notice of Rights” for “both of her aforementioned Charges of Discrimination[3].” Rec. Doc. 1 at 5. Exactly three months after receiving her “Notice of Right to Sue” letter from the EEOC, November 20, 2017, Plaintiff filed her Complaint.[4] On April 03, 2018, Defendant Apache filed a motion to dismiss for failure to state a claim in lieu of an answer. See Rec. Doc. 15. On May 17, 2018, Plaintiff filed a response in opposition. See Rec. Doc. 40. On May 24, 2018, Defendant Apache filed for leave to file a reply. See Rec. Doc. 43. On May 29, 2018, Defendant Apache's reply was added to the record. See Rec. Doc. 47.

         LAW AND ANALYSIS

         A. Motion to Dismiss Standard

         Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. To survive a motion to dismiss under Rule 12(b)(6), a plaintiff's complaint “must contain ‘enough facts to state a claim to relief that is plausible on its face.'” Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In other words, a plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

         When deciding whether a plaintiff has met his or her burden, a court “accept[s] all well-pleaded factual allegations as true and interpret[s] the complaint in the light most favorable to the plaintiff, but ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements' cannot establish facial plausibility.” Snow Ingredients, Inc. v. SnoWizard, Inc., 833 F.3d 512, 520 (5th Cir. 2016) (quoting Iqbal, 556 U.S. at 678) (some internal citations and quotation marks omitted). Plaintiff must “nudge[] [his or her] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

         B. ...


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