United States District Court, E.D. Louisiana
ORDER AND REASONS
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.
AND PROCEDURAL HISTORY
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.
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. See id.
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.” See id.
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.
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.
August 20, 2017, Plaintiff received a “Dismissal and
Notice of Rights” for “both of her aforementioned
Charges of Discrimination.” 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. 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.
Motion to Dismiss Standard
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).
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.