Opinion
CIVIL ACTION NO.: 18-771-BAJ-EWD
2019-02-27
Ajmal AZIZ v. MMR GROUP, INC. et al.
Holt M. Lackey, Pro Hac Vice, DiNovo Price Ellwanger & Hardy LLP, Austin, TX, James Aldo Vagnini, Pro Hac Vice, Valli, Kane and Vagnini, LLP Law Firm, Garden Center, NY, Monica Hincken, Pro Hac Vice, Valli Kane & Vagnini, LLP, Garden City, NY, Philip Bohrer, Bohrer Brady, LLC, Baton Rouge, LA, for Ajmal Aziz. Ivan Mauricio Rodriguez, Phelps Dunbar LLP, Houston, TX, Brandon E. Davis, Phelps Dunbar, Jessica Maci Thomas, The Kullman Firm, Rebecca Sha, Fishman Haygood LLP, New Orleans, LA, for MMR Group Inc., MMR Constructors, Inc.
Holt M. Lackey, Pro Hac Vice, DiNovo Price Ellwanger & Hardy LLP, Austin, TX, James Aldo Vagnini, Pro Hac Vice, Valli, Kane and Vagnini, LLP Law Firm, Garden Center, NY, Monica Hincken, Pro Hac Vice, Valli Kane & Vagnini, LLP, Garden City, NY, Philip Bohrer, Bohrer Brady, LLC, Baton Rouge, LA, for Ajmal Aziz.
Ivan Mauricio Rodriguez, Phelps Dunbar LLP, Houston, TX, Brandon E. Davis, Phelps Dunbar, Jessica Maci Thomas, The Kullman Firm, Rebecca Sha, Fishman Haygood LLP, New Orleans, LA, for MMR Group Inc., MMR Constructors, Inc.
RULING AND ORDER
BRIAN A. JACKSON, JUDGE
Before the Court is the Motion to Dismiss (Doc. 45) filed by MMR Group, Inc. and MMR Constructors, Inc. For the reasons that follow, the Motion (Doc. 45) is GRANTED IN PART and DENIED IN PART.
The parties refer to MMR Group, Inc. and MMR Constructors, Inc. collectively, and the Court does the same.
I. BACKGROUND
This employment-discrimination suit arises from racist and Islamophobic remarks Ajmal Aziz—an African-American Muslim—alleges he endured while working as an electrician at MMR's Iowa facility. (Doc. 20 at ¶¶ 1–72).
Aziz sued MMR for creating a hostile work environment and retaliating against him after he complained about a supervisor. (Id. ). He bases his suit on Title VII of the Civil Rights Act, 42 U.S.C. § 1981, and the Texas Employment Discrimination Act. (Id. ). The well-pleaded facts of his complaint, viewed in his favor, follow. See Midwest Feeders, Inc. v. Bank of Franklin , 886 F.3d 507, 513 (5th Cir. 2018).
Plaintiff began working for MMR as an electrician in 2011. (Id. at 20). He worked without issue for several years at facilities in South Carolina, Ohio, and Texas. (Id. at ¶ 23). The problems began in 2015, when MMR transferred him to its Iowa facility. (Id. at ¶ 27).
At the Iowa facility, Jerry Jones supervised Plaintiff. (Id. at ¶ 28). Jones made "frequent" Islamophobic comments:
• Jones said, "I did not know we hired a terrorist," (Id. at ¶ 29);
• Jones asked Plaintiff if he was a "radical one," (Id. at ¶ 30);
• Jones said, "I do not hire or work with terrorists," (Id. at ¶ 31);
• Jones said, on September 11th, "[t]oday is the anniversary of when all your little buddies took over the planes," (Id. at ¶ 32);
• Jones called Plaintiff a "bomb maker" and said that Plaintiff had "bombs strapped to his car," (Id. at ¶ 33); and
• Jones directed Plaintiff to "[l]ook at [his] brothers" while several employees
played a video of a beheading. (Id. at ¶ 34).
Jones also made racist comments:
• Jones called Plaintiff and an African-American co-worker "monkeys," (Id. at ¶ 36);
• Jones told Plaintiff to "use [his] inner monkey," (Id. ); and
• Jones told Plaintiff that Plaintiff was "swinging like a monkey," (Id. ).
Eventually, Plaintiff complained to Jones. (Id. at ¶ 40). Jones responded by re-assigning Plaintiff to the construction department, where Plaintiff "earn[ed] significantly less" money. (Id. at ¶ 40). Plaintiff then complained to MMR's human resources department. (Id. at ¶ 44). But his complaint prompted only a sham investigation; MMR took no action against Jones. (Id. at ¶ 45).
After Plaintiff complained, MMR assigned him "job duties that were usually performed by lower-level employees." (Id. at ¶ 46). Plaintiff resigned and sued. (Id. ).
Plaintiff first sued in the United States District Court for the Southern District of Texas. (Doc. 1). MMR moved to dismiss the suit for lack of personal jurisdiction; the district court granted MMR's motion, dismissed the case, and entered judgment. (Docs. 30, 31). Plaintiff then moved to amend the judgment to transfer the case rather than dismiss it. (Doc. 32). The district court granted Plaintiff's motion, vacated its judgment of dismissal, and transferred the case to this Court. (Doc. 36).
Now, MMR moves to dismiss Plaintiff's complaint for failure to state a claim. (Doc. 45). MMR argues that Plaintiff's claims are time-barred and inadequately pleaded. (Id. ). Plaintiff invokes the continuing-violations doctrine and rejoins that no claim is time-barred and all claims are adequately pleaded. (Doc. 56-1).
II. LEGAL STANDARD
To overcome MMR's motion, Plaintiff must plead plausible claims for relief. See Romero v. City of Grapevine, Tex. , 888 F.3d 170, 176 (5th Cir. 2018) (citing Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). A claim is plausible if it is pleaded with factual content that allows the Court to reasonably infer that MMR is liable for the misconduct alleged. See Edionwe v. Bailey , 860 F.3d 287, 291 (5th Cir. 2017) (citing Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). The Court accepts as true the well-pleaded facts of Plaintiff's complaint and views those facts in the light most favorable to Plaintiff. See Midwest Feeders, Inc. , 886 F.3d at 513.
III. DISCUSSION
Plaintiff's complaint contains six counts. (Doc. 20 at ¶¶ 1–72). Counts one and three allege that MMR created a hostile work environment in violation of Plaintiff's rights under Title VII and § 1981. (Id. at ¶¶ 48–50; 56–59). Counts two and four allege that MMR retaliated against Plaintiff "by transferring him from the start[-]up and commissioning department to the construction department" in violation of his rights under Title VII and § 1981. (Id. at ¶¶ 51–55; 60–64). Counts five and six allege that MMR violated Plaintiff's rights under the Texas Employment Discrimination Act. (Id. at ¶¶ 65–67; 68–72).
The Court applies the same standard to Plaintiff's claims for race discrimination under Title VII and § 1981. See Thompson v. City of Waco, Tex. , 764 F.3d 500, 503 (5th Cir. 2014).
MMR contends that counts one through four are time-barred and inadequately pleaded and counts five and six must be dismissed for failure to exhaust administrative remedies. (Doc. 45-1 at 1). But Plaintiff objects to MMR's motion on procedural grounds, and the Court considers that objection before turning to the merits. (Doc. 56-1 at 4–5).
A. Successive Rule 12 Motions
Plaintiff asks the Court to ignore MMR's motion because MMR has already filed a motion to dismiss and did not raise in that motion a failure-to-state-a-claim defense. (Id. ). The argument finds support in the text of Federal Rule of Civil Procedure 12 but not in precedent.
Rule 12(g)(2) forbids a party that has made a Rule 12 motion from making another Rule 12 motion raising a defense available to that party but omitted from its earlier motion, "[e]xcept as provided in Rule 12(h)(2) or (3)." Rule 12(h)(2), in turn, permits a party to raise the defenses of failure to state a claim and failure to join an indispensable party in three situations: a pleading allowed or ordered under Rule 7(a), a motion under Rule 12(c), or at trial.
Plaintiff argues that MMR's failure-to-state-a-claim defense does not fall within Rule 12(h)(2)'s exception to Rule 12(g)'s consolidation requirement because MMR raised the defense in a successive motion to dismiss—not in a Rule 7(a) pleading, a Rule 12(c) motion, or at trial. (Doc. 56-1 at 5). The United States Court of Appeals for the Fifth Circuit disagrees. See Doe v. Columbia-Brazoria Ind. Sch. Dist. , 855 F.3d 681, 686 (5th Cir. 2017).
Plaintiff's position finds no support in Albany Ins. Co. v. Almacenadora Somex, S.A. , 5 F.3d 907 (5th Cir. 1993), which applied Rule 12(g)'s consolidation requirement to an omitted improper-venue defense. Improper venue is not one of the defenses that Rule 12(h)(2) excepts from Rule 12(g)'s consolidation requirement; failure to state a claim is. See Doe , 855 F.3d at 686.
Rule 12(g)'s consolidation requirement does not bar MMR from filing a Rule 12(b)(6) motion because " Rule 12(h)(2) explicitly excepts from the consolidation requirement motions based on the defense of failure to state a claim[.]" Doe , 855 F.3d at 686 (citing Nationwide Bi-Weekly Admin., Inc. v. Belo Corp. , 512 F.3d 137, 141 (5th Cir. 2007) ).
The Court recognizes that other circuits have held to the contrary. See In re Apple Iphone Antitrust Litig. , 846 F.3d 313, 318 (9th Cir. 2017) (Rule 12(g)(2) prohibits successive Rule 12(b)(6) motions); Leyse v. Bank of Am. Nat. Ass'n , 804 F.3d 316, 321 (3d Cir. 2015) (same); Albers v. Bd. Of Cty. Comm'rs of Jefferson Cty., Colo. , 771 F.3d 697, 703 (10th Cir. 2014) (same).
Because MMR's motion to dismiss is not subject to Rule 12(g)'s consolidation requirement, the Court overrules Plaintiff's objection and turns to the merits of MMR's motion. See Id.
Even if MMR's motion were subject to Rule 12(g), the Court would consider it: the motion is fully briefed and a ruling on the issues it raises will streamline this litigation. See, e.g., Iphone Antitrust Litig. , 846 F.3d at 318 ("Denying late-filed Rule 12(b)(6) motions and relegating defendants to the three procedural avenues specified in Rule 12(h)(2) can produce unnecessary and costly delays, contrary to the direction of Rule 1.").
B. Statute of Limitations
For its first argument, MMR asserts that Plaintiff's Title VII claims are time-barred. (Doc. 45-1 at 6). It argues that claims accruing before March 25, 2016 are barred by the 300-day limitation period in 42 U.S.C. § 2000e-5(e) and claims accruing after March 25, 2016 are barred by the 90-day limitation period in 42 U.S.C. § 2000e-5(f)(1). (Id. ).
1. Alleged Violations Occurring Before March 25, 2016
MMR argues that any claim based on alleged Title VII violations that occurred before March 25, 2016 is time-barred. (Doc. 45-1 at 6).
In Louisiana, a Title VII plaintiff must file an EEOC charge within 300 days of the alleged unlawful employment practice. See 42 U.S.C. § 2000e-5(e) ; Price v. Choctaw Glove & Safety Co. , 459 F.3d 595, 598 n.7 (5th Cir. 2006). Because Plaintiff filed his EEOC charge on January 18, 2017, and 300 days from that date is March 25, 2016, Plaintiff cannot sue for any discrete acts of discrimination that occurred before March 25, 2016. See 42 U.S.C. § 2000e-5(e).
Louisiana is considered a "deferral state" because the Louisiana Commission on Human Rights can remedy employment discrimination. See La. R.S. 51:2231, et seq.
But Plaintiff insists he is not suing for discrete discrimination; he is suing for continuing discrimination. (Doc. 56-1 at 6). And he argues that his Title VII claims are timely under the continuing-violations doctrine. (Id. ).
The continuing-violations doctrine holds that a plaintiff can sue for otherwise time-barred discrimination if the plaintiff can show "that the discrimination manifested itself over time, rather than in a series of discrete acts." Frank v. Xerox Corp. , 347 F.3d 130, 136 (5th Cir. 2003). It applies if a plaintiff shows "a series of related acts, one or more of which falls within the limitations period." Messer v. Meno , 130 F.3d 130, 135 (5th Cir. 1997).
Plaintiff alleges continuing violations of Title VII. He alleges that "[t]hroughout his employment" Jones and co-workers told him he was "affiliated with Islamic terrorism" and called him "bomb maker" and "monkey." (Doc. 20 at ¶¶ 33, 36). And his complaint makes clear that the specific events of discrimination described are "example[s]" of discrimination he alleges he endured "[t]hroughout his employment." (Id. at ¶¶ 28–29).
MMR responds that the continuing-violations doctrine does not apply. (Doc. 60 at 3). In its view, Plaintiff's re-assignment to another department in February 2016 qualifies as an "intervening action" that shields it from liability for acts outside the filing window—acts before March 25, 2016—under Stewart v. Miss. Transp. Comm'n , 586 F.3d 321 (5th Cir. 2009). ( Id. ).
Stewart places three limits on the continuing-violations doctrine: (1) the plaintiff must show that the separate acts are related; (2) the violation must be continuing; intervening action by the employer will sever the acts that preceded it from those that followed it; and (3) the Court's equitable powers. Stewart , 586 F.3d at 328. The parties focus on the second limit.
Stewart arose from an employee's allegations that her supervisor sexually harassed her. Id. at 325. The employee sued her employer under Title VII, alleging that her supervisor's behavior over a three-year period created a hostile work environment. Id. at 327. But she based her suit on acts occurring inside and outside the Title VII filing window. Id.
Pointing to that filing window, the employer moved for summary judgment. Id. The employee raised the continuing-violations doctrine in reply. Id. The employer rejoined that the doctrine did not apply because the only actionable discrimination occurred outside the filing window, before it reassigned the employee from the alleged abuser's supervision. Id. That reassignment, the employer argued, was an "intervening action" precluding liability for preceding acts outside the filing window. Id. The district court agreed and granted summary judgment. Id.
The Fifth Circuit affirmed. Id. at 333. In so holding, it reasoned that the employee's reassignment was an "intervening action" that "cut off the employer's liability for the earlier harassment." Id. at 325. And it clarified that the reassignment qualified as an "intervening action" because it was a "prompt remedial action" that was "reasonably calculated to end the harassment." Id. ; contrast Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll. , 850 F.3d 731, 740–741 (5th Cir. 2017) (university offered no evidence of intervening acts that would have severed the continuing Title VII violation).
Viewing only the well-pleaded allegations of Plaintiff's complaint, the Court cannot conclude that MMR's reassignment of Plaintiff is an "intervening action" that shields MMR from liability for acts before March 25, 2016. See Stewart , 586 F.3d at 325. Those allegations do not provide the Court with the information it needs to decide if the reassignment is a "prompt remedial action ... reasonably calculated to end the harassment." See Id. If discovery reveals it to be so, the Court invites MMR to move for summary judgment on that basis.
Plaintiff has alleged facts showing a continuing violation of Title VII, and those facts do not cast Plaintiff's reassignment as an "intervening action." See Stewart , 586 F.3d at 325. The Court therefore denies MMR's motion to dismiss, on statute of limitations grounds, those of Plaintiff's Title VII claims that are based on pre-March 25, 2016 conduct.
2. Alleged Violations Occurring After March 25, 2016
For its second statute-of-limitations argument, MMR contends that Plaintiff's claims based on Title VII violations occurring after March 25, 2016 are time-barred because Plaintiff failed to file a complaint in a court of competent jurisdiction within 90 days after he received a right-to-sue letter. (Doc. 45-1 at 7) (emphasis added).
A Title VII plaintiff must sue within 90 days after he receives a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1). Plaintiff sued in the United States District Court for the Southern District of Texas on December 28, 2017, within 90 days after he received his right-to-sue letter on September 29, 2017. (Doc. 1). His suit is therefore timely.
This suit was transferred—not dismissed. (Doc. 36). So MMR's position finds no support in Carter v. Tex. Dep't of Health , 119 F. App'x 577 (5th Cir. 2004) (per curiam).
Still, MMR insists that Plaintiff's December 28, 2017 suit did not interrupt § 2000e-5(f)(1)'s 90-day limitation period because Plaintiff sued in a court without personal jurisdiction over it. The argument fails to persuade. Section 2000e-5(f)(1) does not state that a suit must be filed within 90 days in a court of competent jurisdiction; it merely states that "ninety days after the giving of [a right-to-sue] notice a civil action may be brought[.]" 42 U.S.C. § 2000e-5(f)(1). It is undisputed that Plaintiff "brought" a "civil action" within 90 days of September 29, 2017, and that is all § 2000e-5(f)(1) requires. So the Court denies MMR's motion to dismiss, on statute of limitations grounds, those of Plaintiff's Title VII claims that are based on post-March 25, 2016 conduct.
C. Hostile Work Environment
Next, MMR argues that Plaintiff fails to state a hostile-work-environment claim because he does not allege discrimination of sufficient severity. (Doc. 45-1 at 10). In MMR's view, Plaintiff's allegations focus on Jones's "isolated, offhand" comments, and those comments cannot support a hostile-work-environment claim. (Id. ). The Court disagrees. To plead a hostile-work-environment claim, Plaintiff must allege that (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment was because of his race; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action. See Hernandez v. Yellow Transp., Inc. , 670 F.3d 644, 651 (5th Cir. 2012). Only the fourth element is at issue.
Harassment affects a term, condition or privilege of employment if "it is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Hernandez , 670 F.3d at 651. In determining whether the harassment Plaintiff alleges so qualifies, the Court must take "all of the circumstances ... into consideration." Ramsey v. Henderson , 286 F.3d 264, 268 (5th Cir. 2002). Those circumstances include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with [Plaintiff's] work." Hernandez , 670 F.3d at 651 (citation omitted).
Plaintiff has adequately alleged harassment "affecting a term, condition, or privilege" of his employment. See Hernandez , 670 F.3d at 651. He alleges that Jones and others made "frequent" racist and Islamophobic remarks—calling Plaintiff "bomb maker," "monkey," and a "radical one"—throughout Plaintiff's employment. (Doc. 20 at ¶¶ 33, 36). These allegations, considered together and viewed in the light most favorable to Plaintiff, show "a long-term pattern of ridicule sufficient to establish a [hostile-work-environment] claim." See E.E.O.C. v. WC&M Enters., Inc. , 496 F.3d 393, 401 (5th Cir. 2007). The Court therefore denies MMR's motion to dismiss Plaintiff's hostile-work-environment claim.
Plaintiff's allegations of verbal harassment resemble the evidence that the Fifth Circuit, in WC&M , deemed sufficient to create a genuine dispute of material fact as to whether harassment was severe enough to alter a condition of employment. See WC&M , 496 F.3d at 401. The WC&M plaintiff, a Muslim, offered evidence showing that he was "subjected to verbal harassment on a regular basis," "constantly called ‘Taliban,’ " "referred to as an ‘Arab,’ " mocked during prayer rituals, and told to "go back where he came from." Id.
D. Retaliation
MMR argues that Plaintiff fails to state a retaliation claim because he does not allege an adverse employment action. (Doc. 45-1 at 13).
Title VII's anti-retaliation provision forbids MMR from taking adverse employment action against Plaintiff because Plaintiff opposed practices made unlawful by Title VII. See 42 U.S.C. § 2000e-3(a). To plead a claim under the provision, Plaintiff must allege that (1) he engaged in activity protected by Title VII; (2) MMR took "materially adverse employment action" against him; and (3) a causal connection between the protected activity and the adverse employment action. See Fisher v. Lufkin Indus., Inc. , 847 F.3d 752, 757 (5th Cir. 2017). Only the second element is at issue.
An employment action is "materially adverse" if it "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Reassignment—even to a position with equal pay—can be a "materially adverse action." Aryain v. Wal-Mart Stores Tex., LP , 534 F.3d 473, 485 (5th Cir. 2008).
Plaintiff adequately alleges that MMR took "materially adverse action" against him after he complained about Jones's conduct. (Doc. 20 at ¶¶ 40, 46). He alleges that Jones responded by reassigning him to the "construction department," where he "earn[ed] significantly less." (Id. at ¶ 40). And he alleges that he was later "assigned to job duties ... usually performed by lower-level employees." (Id. at ¶ 46).
Retaliatory reassignment to a worse-paying position "might ... dissuad[e] a reasonable worker from making or supporting a charge of discrimination." See White , 548 U.S. at 67, 126 S.Ct. 2405. Because Plaintiff has alleged he was assigned to a worse-paying position after complaining about Jones, Plaintiff adequately alleges the second element of his retaliation claim. See Thompson , 764 F.3d at 504. The Court therefore denies MMR's motion to dismiss Plaintiff's retaliation claim.
E. Constructive Discharge
The parties discuss constructive discharge, but Plaintiff does not plead the theory in his complaint. (Doc. 20 at ¶¶ 48–72). He devotes just one allegation—a conclusion, really—to the theory:
On or about April 2016, Plaintiff was constructively discharged. Plaintiff was forced to resign due to Defendants' failure to cure the discrimination, harassment, and retaliation he was subjected to due to his religion, race, and color.
(Id. at ¶ 47).
Constructive discharge is a distinct Title VII claim. See Brown v. Kinney Shoe Corp. , 237 F.3d 556, 566 (5th Cir. 2001). A plaintiff asserting a constructive-discharge claim must allege (1) "that he was discriminated against by his employer to the point where a reasonable person in his potion would have felt compelled to resign[,]" and (2) "that he actually resigned." See Green v. Brennan , 578 U.S. 547, 136 S. Ct. 1769, 1777, 195 L.Ed.2d 44 (2016).
To determine whether a reasonable person in Plaintiff's position would have felt compelled to resign, the Court considers seven factors:
(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement.
Keelan v. Majesco Software, Inc. , 407 F.3d 332, 342 (5th Cir. 2005) (citation omitted).
The Court assumes that Plaintiff does not intend to plead a constructive-discharge claim: his complaint does not devote a count to constructive discharge, yet it devotes separate counts to six other claims. (Doc. 20 at ¶¶ 28–72).
If Plaintiff intends to plead a constructive-discharge claim, he has done so inadequately. He fails to allege enough facts to allow the Court to determine whether a reasonable person in his position would have felt compelled to resign. See Keelan , 407 F.3d at 342. The Court therefore grants MMR's motion as to Plaintiff's constructive-discharge claim and dismisses the claim without prejudice. F. Religious Discrimination - § 1981
Justice requires that Plaintiff have an opportunity to amend his complaint to attempt to plead a plausible constructive-discharge claim. See Fed. R. Civ. P. 15(a). The Court therefore grants Plaintiff 14 days to amend.
MMR argues that Plaintiff fails to state claims for religious discrimination under § 1981 because § 1981 does not protect against religious discrimination. (Doc. 45-1 at 9). MMR is correct. See McCoy v. Homestead Studio Suites Hotels , 177 F. App'x 442, 445 n.2 (5th Cir. 2006) (per curiam). To the extent Plaintiff attempts to plead claims for religious discrimination under § 1981, the Court dismisses the claims with prejudice.
Because Plaintiff's § 1981 claims for race-based discrimination remain, the Court need not consider Plaintiff's contention that his § 1981 claims for religious discrimination are "intertwined" with his § 1981 claims for race-based discrimination. (Doc. 56-1 at 10).
G. Texas Employment Discrimination Act
MMR argues that Plaintiff fails to state claims under the Texas Employment Discrimination Act because he does not allege that he exhausted available administrative remedies under the Act. (Doc. 45-1 at 7-8). Plaintiff responds that he "will voluntarily dismiss his claims" under the Texas Employment Discrimination Act because this case was transferred to the Middle District of Louisiana. (Doc. 56-1 at 10).
Considering Plaintiff's representation, the Court grants MMR's motion as to Plaintiff's claims under the Texas Employment Discrimination Act and dismisses those claims with prejudice.
H. Punitive Damages
MMR argues that Plaintiff fails to state a claim for punitive damages because he does not allege that MMR acted with malice or deliberate indifference. (Doc. 45-1 at 9).
Plaintiff does not address the argument. (Doc. 56-1 at 1–12).
To plead a punitive-damages claim, Plaintiff's allegations must show that MMR engaged in a discriminatory practice with "malice" or with "reckless indifference" to Plaintiff's federally-protected rights. See 42 U.S.C. § 1981a(b)(1). The terms "malice" and "reckless indifference" refer to MMR's "knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." See Kolstad v. Am. Dental Ass'n , 527 U.S. 526, 535, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999).
Plaintiff does not allege that MMR knew it was acting in violation of federal law, so he fails to plausibly allege the "malice" or "reckless indifference" that is required to support a claim for punitive damages. The Court therefore grants MMR's motion as to Plaintiff's request for punitive damages and dismisses the claim without prejudice.
Justice requires that Plaintiff have an opportunity to amend his complaint to attempt to plead a plausible punitive-damages claim. See Fed. R. Civ. P. 15(a). The Court therefore grants Plaintiff 14 days to amend.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that the Motion to Dismiss (Doc. 45) filed by MMR Group, Inc. and MMR Constructors, Inc. is GRANTED IN PART and DENIED IN PART. Specifically, Plaintiff's Texas Employment Discrimination Act claims are DISMISSED with prejudice; Plaintiff's religious-discrimination claims under 42 U.S.C. § 1981 are DISMISSED with prejudice; Plaintiff's constructive-discharge claim, to the extent he attempts to assert one, is DISMISSED without prejudice; and Plaintiff's punitive-damages claim is DISMISSED without prejudice. All other claims remain before the Court.
IT IS FURTHER ORDERED that Plaintiff has 14 days to amend his complaint if he wishes to re-plead his constructive-discharge and punitive-damages claims. If Plaintiff fails to timely amend, the Court will dismiss those claims with prejudice.