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McNulty v. Cox Media Group LLC

United States District Court, W.D. Louisiana, Lafayette Division

February 12, 2019

Cox Media Group LLC

          Michael J Juneau Magistrate Judge



         Before the Court, upon assignment from the district judge, is a Motion to Dismiss filed by defendant, Cox Communications Louisiana, LLC (“Cox”)[1] [Rec. Doc. 9], Plaintiff, Ruth J. McNulty's, Memorandum In Opposition [Rec. Doc. 11] and Cox's Reply thereto [Rec. Doc. 14]. For the reasons that follow, the Court will recommend that the Motion be denied in part and denied in part without prejudice to Cox's right to reurge.


         This case arises as a wage discrimination suit. Plaintiff alleges that she began working as an Account Coordinator for Cox in April 2006. R. 3, ¶ 6. Her last title was Account Executive/Sales Consultant. Id. at ¶ 7. For the last eight years, she worked under the Local Sales Manager, Gwen Cook. Plaintiffs pay was based on commission and salary. Id. at ¶ 9. Her commission was based on a percentage of sales (including ongoing performance of accounts), and her salary was based on a percentage of “budget.” Id. at ¶¶ 10-11. The “budget” was also calculated based on the anticipated performance of accounts assigned to that particular Account Executive/Sales Consultant. Id. at ¶ 12.

         Plaintiff alleges that the Cox administration “has a fair amount of ability to manipulate results.” Id. at 15. In particular, she alleges that “Cook has the ability to assign leads and even to move performing accounts to different Account Executives/Sales Consultants” (Plaintiff and/or her coworkers). Id. at ¶¶ 15, 16. Plaintiff alleges that, because she is black, she was routinely assigned the accounts associated with black-owned businesses-typically small businesses with lower advertising budgets-to the exclusion of accounts owned by non-black persons or agency accounts-larger and more lucrative. Id. at ¶¶ 19, 20, 21, 25-27. She further alleges that when she developed any businesses, black or white, into larger accounts, Cook took her accounts and gave them to one of Plaintiff s white counterparts. Id. at ¶ 22. As a result of the foregoing treatment, Plaintiff alleges she lost salary and commission, Id. at ¶ 22; she had to work “three to four times harder” than her white counterparts in order to meet the “budget” requirements, Id. at ¶29; and her white counterparts were treated better, Id. at 34 - 37, 47, 51, 54.

         Plaintiff alleges three Counts: (I) Violations of the Equal Pay Act (“EPA”), 29 U.S.C. §§ 206(d), for discrimination on the basis of sex by paying wages to employees at a rate less than the rate of pay of employees of the opposite sex for equal work, requiring equal skill, effort and responsibility, under similar working conditions, Id. at ¶ 71; (II) Violations of Title VII- Race Discrimination and Retaliation, 42 U.S.C. § 2000e-2(a)(1) (“Title VII”), as Plaintiff, a black female, was subjected to adverse employment action when Cox gave better treatment to similarly-situated persons outside Plaintiffs protected class by inter alia, reducing her pay, diverting leads away from her, reducing her commissions, and retaliation after she complained about this disparate treatment, Id. at ¶¶ 82 84; and (III) Violation of Louisiana Employment Discrimination Law (“LEDL”), La. RS. 23:301 et seq. for race discrimination.

         Cox filed the instant motion to dismiss pursuant to Rule 12(b)(6) asserting that the Court should dismiss all of Plaintiff s claims for failure to satisfy the requirements under the EPA, Title VII and the LEDL. R. 9-1, pp. 1, 16. The Court will address Cox's Motion as follows.


         When a defendant attacks the complaint because it fails to state a legally cognizable claim, Rule 12(b)(6) provides the appropriate challenge. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1960 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949. 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 (5th Cir.2009. But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 129 S.Ct. at 1949.

         A legally sufficient complaint must establish more than a “sheer possibility” that 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. Id. 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, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, the claim must be dismissed. Twombly, 550 U.S. at 555; Carbe v. Lappin, 492 F.3d 325, 328 n. 9 (5th Cir.2007).


         Plaintiff asserts federal claims under Title VII for discrimination based on her race and her gender (black female) and for retaliation, as well as a claim under the EPA. She also asserts a state law claim for employment discrimination under the LEDL. Cox contends that Plaintiff cannot assert a claim for sex discrimination under Title VII because her EEOC charge of discrimination (“Charge”) does not identify sex as a basis for discrimination. Cox further contends that Plaintiff's Title VII claims fail because her allegations do not establish an adverse employment action, as required under the Act. As to her EPA claim, Cox argues that Plaintiff's allegations address only racial discrimination and the EPA applies solely to discrimination based on sex. Finally, Cox contends that because Plaintiff's EEOC Charge fails to claim sex discrimination and because she failed to provide Cox with written notice of her lawsuit, her LEDL claim related to sex discrimination should be dismissed without prejudice. The Court will address each claim separately as follows.

         A. Title VII

         1. Exhaustion of Administrative Remedies

         Title VII requires that a plaintiff must first exhaust administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 180 days of any such misconduct. 42 U.S.C. § 2000e-5(e)(1). Because the provisions of Title VII were not designed for the sophisticated, and because most complaints are initiated pro se, the scope of an EEOC complaint is liberally construed to determine whether a plaintiff has administratively exhausted a particular claim. Patton v. Jacobs Eng'g Grp., Inc., 874 F.3d 437, 443 (5th Cir. 2017) (citing Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006)). “‘On the other hand, a primary purpose of Title VII is to trigger the investigatory and conciliatory procedures of the EEOC, in attempt[ing] to achieve non-judicial resolution of employment discrimination claims.'” Id. (quoting Pacheco, 448 F.3d at 788-89). Balancing these considerations requires a court to interpret “what is properly embraced in review of a Title VII claim somewhat broadly, not solely by the scope of the administrative charge itself, but by the scope of the EEOC investigation which ‘can reasonably be expected to grow out of the charge of discrimination.'” Id. (quoting Pacheco, 448 F.3d at 789). Thus, a court engages in a “‘fact-intensive analysis of the statement given by the plaintiff in the administrative charge and look[s] slightly beyond its four corners, to its substance rather than its label.'” Id. (quoting Pacheco, 448 F.3d at 789). As the Fifth Circuit explained:

Title VII employment discrimination may be based, not only upon the specific complaints made by the employee's initial EEOC charge, but also upon any kind of discrimination like or related to the charge's allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination.

Fellows v. Universal Restaurants, Inc., 701 F.2d 447, 451 (5th Cir. 1983).

         On February 22, 2018, Plaintiff filed a Charge of Discrimination with the EEOC (“the Charge”). Plaintiff defined the time period applicable to her Charge as “10-01-2017.” The Charge stated in pertinent part:

I was hired by Cox Media in April 2006, most recently as an Account Executive/Sales Consultant. I have been subjected to harassment because of my race (Black) and retaliated against after filing multiple complaints with Ms. Jackie Sonnier, Human Resources, most recently as of January 2018, about unfair treatment and harassment by Gwen Cook, Local Sales Manager. Ms. Cook has harassed and retaliated against me by taking my larger accounts from me and assigning to other Caucasian coworkers; not allowing me to earn the same opportunities in pay as other Caucasian coworkers. I do not have the same opportunity my white peers have. When a large business/agency call [sic] in to advertise the account goes to my white peers. I only get small accounts and most of the small black accounts or one-time billing accounts. I must deal with harassment, retaliation an [sic] unequal treatment from Gwen each time I report something to HR. In January 2018, I prospect [sic] a large account and it was taking [sic] away from me. I must work 10 times harder than my peers to meet my budget. 3-4 accounts to their one account. ...

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