United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is a Motion to Dismiss and/or Motion for a More
Definite Statement [doc. 3] filed by defendant CB&I, LLC
(“CB&I”) in response to the employment
discrimination suit [doc. 1] brought by plaintiff Jesus
Barragan-Ochoa (“Barragan”). Barragan opposes
CB&I's motions and CB&I has filed a reply. Docs.
motions have been referred to the undersigned for review,
report, and recommendation in accordance with 28 U.S.C.
§ 636. For the reasons provided below, IT IS
RECOMMENDED that the Motion for a More Definite
Statement [doc. 3] be DENIED and that the
Motion to Dismiss [doc. 3] be GRANTED IN
PART and DENIED IN PART.
Barragan's claims of harassment and retaliation under
Title VII should be DISMISSED WITHOUT
PREJUDICE as unexhausted, while his disparate
treatment claim should survive.
action arises from Barragan's alleged treatment during
and subsequent termination from, subsequently commuted to a
three-day suspension, his employment with CB&I, on or
about August 8, 2016. Doc. 1, pp. 3-6. Barragan states that
he is Hispanic and was treated less favorably than his
non-Hispanic coworkers at CB&I, where he worked as a
rod-busting foreman. Id. at pp. 3-5, ¶¶ 7,
11-17. Barragan also alleges other instances of being spoken
to and hearing Hispanic employees, generally, spoken about in
an insulting manner. Id. at pp. 4-5, ¶¶
17-19. Barragan states that he reported his concerns to a
supervisor and was unexpectedly terminated shortly
thereafter. Id. at pp. 5-6, ¶¶ 20-21. He
was told that the termination was due to a write-up by an
employee named Seth Schneider. Id. at p. 6, ¶
22. Two days later, CB&I contacted Barragan and told him
that the termination had been changed to a three-day
suspension without pay. Id. at ¶ 23. Again, no
explanation was offered and CB&I refused to provide
Barragan with any documentation relating to the termination.
Id. at ¶ 24. When Barragan asked Schneider
about the reason for the write-up, Schneider simply replied
that he had been instructed to do so and stated that he did
not want any hard feelings. Id. at ¶ 25.
filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) and the Louisiana
Commission on Human Rights via a form signed on April 7,
2017. Doc. 1, att. 2. He also completed an intake
questionnaire with the EEOC on November 28,
2016. Doc. 6, att. 2. He received a notice of
suit rights from the EEOC on March 26, 2018. Doc. 1, att. 3.
He then filed suit against CBI in this court on June 26,
2018, alleging that CB&I's actions violated
unspecified provisions of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000 et seq. Doc. 1, pp.
6-7, ¶¶ 26-29.
now brings the instant Motion to Dismiss under Federal Rule
of Civil Procedure 12(b)(6) and Motion for a More Definite
Statement under Federal Rule of Civil Procedure 12(e). Doc.
3. Specifically, it alleges that Barragan has failed to
exhaust his administrative remedies and has not stated a
claim for which relief may be granted because he has not
exhausted his administrative remedies and because he fails to
make out a prima facie case of discrimination or
retaliation. Doc. 3, att. 1. In the event that
Barragan's retaliation claim survives the Motion to
Dismiss, CB&I moves that Barragan be required to clarify
whether the claim is based on the termination or suspension.
Id. at 18.
Rule 12(b)(6) and 12(b)(3) Standards
12(b)(6) of the Federal Rules of Civil Procedure allows for
dismissal of a claim when a plaintiff “fail[s] to state
a claim upon which relief can be granted.” When
reviewing such a motion, the court should focus on the
complaint and its attachments. Wilson v. Birnberg,
667 F.3d 591, 595 (5th Cir. 2012). The court can also
consider matters of which it may take judicial notice,
including matters of public record. Hall v.
Hodgkins, 305 Fed. App'x 224, 227 (5th Cir. 2008)
unpublished) (citing Lovelace v. Software Spectrum
Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996) and
Norris v. Hearst Trust, 500 F.3d 454, 461 n. 9 (5th
motions are also reviewed with the court “accepting all
well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff.” Bustos v.
Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010).
However, “the plaintiff must plead enough facts
‘to state a claim to relief that is plausible on its
face.'” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974
(2007)). “A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of
action will not do. Nor will a complaint suffice if it tends
naked assertions devoid of further factual
enhancement.” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (cleaned up). Instead, 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 v. U.S.
Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).
Accordingly, the court's task in evaluating a motion to
dismiss under Rule 12(b)(6) is “not to evaluate the
plaintiff's likelihood of success, ” but instead to
determine whether the claim is both legally cognizable and
plausible. Billups v. Credit Bureau of Greater
Shreveport, 2014 WL 4700254, *2 (W.D. La. Sep. 22, 2014)
(quoting Lone Star Fund V (U.S.), L.P. v. Barclays Bank
PLC, 594 F.3d 383, 387 (5th Cir. 2010)).
Federal Rules of Civil Procedure also authorize a motion for
a more definite statement, when “a pleading to which a
responsive pleading is allowed . . . is so vague or ambiguous
that the party cannot reasonably prepare a response.”
Fed.R.Civ.P. 12(e). The court must assess the pleading under
the minimum pleading standards under Rule 8 of the Federal
Rules of Civil Procedure, which requires, in relevant part,
only “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Babcock
& Wilcox Co. v. McGriff, Seibels & Williams,
Inc., 235 F.R.D. 632, 633 (E.D. La. 2006); Fed.R.Civ.P.
8(a)(2). Additionally, due to the availability of extensive
discovery on a plaintiff's claims, Rule 12(e) motions are
disfavored. Babcock, 235 F.R.D. at 633. ...