KAREN L. HAYES, Magistrate Judge.
Before the undersigned magistrate judge, on reference from the District Court, is a motion to dismiss for failure to state a claim upon which relief can be granted [doc.# 12] filed by defendant, Simply 10 d/b/a 10 Below, L.L.C. For reasons assigned below, it is recommended that the motion to dismiss be GRANTED, and that plaintiff's complaint be DISMISSED, as to all parties, in its entirety.
On December 12, 2018, Nakya Burns filed the instant pro se complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., against her former employer, Simply 10 d/b/a 10 Below, L.L.C. ("Simply 10") and Patricia Kelly, a Simply 10 manager. (Compl.).
Burns contends that her discharge was based on her gender/sex (because she had a miscarriage), and therefore, unlawful. She seeks an award of lost wages, plus reinstatement, and an order requiring Simply 10 to implement guidelines and processes to ensure that this type of conduct never recurs.
According to plaintiff, she filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") on April 27, 2017, a copy of which she appended to her complaint. (Compl., Exh.). The charge specifies that the earliest and latest date that discrimination occurred was May 11, 2016, i.e., the date that Burns was discharged from employment. (EEOC Charge, Compl., Exh.).
On April 8, 2019, Simply 10 filed the instant motion to dismiss the complaint for failure to state a claim upon which relief can be granted on the basis that plaintiff failed to file a timely charge of discrimination with the EEOC — a prerequisite to a subsequent Title VII suit. Plaintiff did not file a response to the motion, and the time to do so has lapsed. (Notice of Motion Setting [doc. # 15]). Therefore, the motion is deemed unopposed. Id.
The Federal Rules of Civil Procedure sanction dismissal where the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A pleading states a claim for relief when, inter alia, it contains a "short and plain statement . . . showing that the pleader is entitled to relief . . ." Fed.R.Civ.P. 8(a)(2).
To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)). A claim is facially plausible when it contains sufficient factual content for the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Plausibility does not equate to possibility or probability; it lies somewhere in between. See Iqbal, supra. Plausibility simply calls for enough factual allegations to raise a reasonable expectation that discovery will reveal evidence to support the elements of the claim. See Twombly, 550 U.S. at 556, 127 S.Ct. at 1965. Assessing whether a complaint states a plausible claim for relief is a "contextspecific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, supra (citation omitted). A well-pleaded complaint may proceed even if it strikes the court that actual proof of the asserted facts is improbable, and that recovery is unlikely. Twombly,
Although the court must accept as true all factual allegations set forth in the complaint, the same presumption does not extend to legal conclusions. Iqbal, supra. A pleading comprised of "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" does not satisfy Rule 8. Id. Moreover, courts are compelled to dismiss claims grounded upon invalid legal theories even though they might otherwise be well-pleaded. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827 (1989).
Nevertheless, "[t]he notice pleading requirements of Federal Rule of Civil Procedure 8 and case law do not require an inordinate amount of detail or precision." Gilbert v. Outback Steakhouse of Florida Inc., 295 Fed. Appx. 710, 713 (5th Cir. 2008) (citations and internal quotation marks omitted). Further, "a complaint need not pin plaintiff's claim for relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible `short and plain' statement of the plaintiff's claim, not an exposition of [her] legal argument." Skinner v. Switzer, 562 U.S. 521, 131 S.Ct. 1289, 1296 (2011). Indeed, "[c]ourts must focus on the substance of the relief sought and the allegations pleaded, not on the label used." Gearlds v. Entergy Servs., Inc., 709 F.3d 448, 452 (5th Cir. 2013) (citations omitted). "Specific facts are not necessary; the statement need only `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (quoting Bell Atl., 127 S. Ct. at 1958). In the context of employment discrimination claims, "the ordinary rules for assessing the sufficiency of a complaint apply," and a plaintiff need not establish a prima facie case of employment discrimination in her complaint. Swierkiewicz v. Sorema, 534 U.S. 506, 511, 122 S.Ct. 992, 997 (2002).
When considering a motion to dismiss, courts generally are limited to the complaint and its proper attachments. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citation omitted). However, courts may rely upon "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice" — including public records. Dorsey, supra; Norris v. Hearst Trust, 500 F.3d 454, 461 n9 (5th Cir. 2007) (citation omitted) (proper to take judicial notice of matters of public record). Furthermore, "[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [her] claim." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-499 (5th Cir. 2000) (citations and internal quotation marks omitted).
Employment discrimination plaintiffs must exhaust administrative remedies before pursuing claims in federal court. Taylor v. Books A Million, Inc. 296 F.3d 376, 378-379 (5th Cir. 2002); Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996). A Title VII plaintiff exhausts administrative remedies when she files a timely charge with the EEOC and receives a statutory notice of right to sue. Id.
In a "deferral state" such as Louisiana,
Here, the alleged discriminatory employment action — Burns's termination — occurred on May 11, 2016. However, plaintiff did not file her charge with the EEOC until April 27, 2017 — more than 300 days later. Accordingly, she failed to timely exhaust administrative remedies, and her suit is subject to dismissal on that basis. Moore v. Angus Chem. Co., No. 07-0415, 2008 WL 4491592, at *7 (W.D. La. Oct. 1, 2008) Lovell v. Office of Fin. Institutions, No. 18-0575, 2019 WL 1233856, at *3 (M.D. La. Mar. 15, 2019) (citations omitted).
The court notes that neither Patricia Kelly, nor any of the other versions of Simply 10 (insofar as they exist) joined in the motion to dismiss. Nonetheless, they are entitled to dismissal on the same or similar grounds as the moving defendant. Lewis v. Lynn, 236 F.3d 766, 768, 236 F.3d 766 (5th Cir. 2001) (where defending party establishes that plaintiff has no cause of action, the defense generally inures to the benefit of a non-appearing co-defendant). Moreover, generally, only employers may be liable under Title VII. Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007) (citations omitted). There is no indication or argument that Kelly was plaintiff's employer for purposes of Title VII.
For the reasons set forth above,
IT IS RECOMMENDED that defendant's motion to dismiss for failure to state a claim upon which relief can be granted [doc. # 12] be GRANTED, and that plaintiff's complaint be DISMISSED with prejudice, as to all parties, in its entirety, at plaintiff's cost. FED. R. CIV. P. 12(b)(6).
Under the provisions of 28 U.S.C. §636(b)(1)(C) and FRCP Rule 72(b), the parties have