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Barragan-Ochoa v. C B& I LLC

United States District Court, W.D. Louisiana, Lake Charles Division

March 7, 2019





         Before 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. 6, 8.

         These 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.



         This 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.

         Barragan 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.[1] 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.

         CB&I 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.[2] 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.


         Law & Analysis

         A. Rule 12(b)(6) and 12(b)(3) Standards

         1. Rule 12(b)(6)

         Rule 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 Cir. 2007)).

         Such 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)).

         2. Rule 12(e)

         The 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. ...

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