Olive v. Clay Development & Construction, No. 4:2013cv03181 - Document 13 (S.D. Tex. 2014)
Court Description: MEMORANDUM AND ORDER granting 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Signed by Judge Ewing Werlein, Jr) Parties notified.(rosaldana, 4)
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Olive v. Clay Development & Construction Doc. 13 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION RILEY OLIVEr § § § § § § § § § § Plaintiff r v. CLAY DEVELOPMENT & CONSTRUCTION r Defendant. CIVIL ACTION NO. H-13-3181 MEMORANDUM & ORDER Pending is Defendant Clay Development and Construction's Rule 12(b) (6) Motion to Dismiss (Document No. 10). Plaintiff has filed no response r and the motion is therefore deemed unopposed pursuant to Local Rule 7.4. After carefully considering the motion and applicable law r the Court concludes as follows. I. Background Pro se Plaintiff Riley Olive ("Plaintiff ll ) appears to allege retaliation and age discrimination against Development and Construction ("Defendant ll ). however r consists of the Charge of Defendant Clay His written Complaint r Discrimination and other documents he filed in the Equal Employment Opportunity Commission ("EEOC"), his Right to Sue letter received from the EEOC r signed document stating, of the Southern and a "Presented is documentation to the court District of Texas on the claim of "Wrongful Terminationllj by the virtue r Breach of Implied Contract, Breach of Dockets.Justia.com the Covenant on good faith and Dealings. III (emphasis in original) . The Court considers the factual allegations in these documents to evaluate whether Plaintiff has stated a claim. 2 Plaintiff began working for Defendant as an orchard manager on a 4,000 acre ranch in September, when he arrived on the ranch, 2012. 3 Plaintiff alleges that the orchard had been damaged and Plaintiff was responsible for replanting it.4 Plaintiff alleges that he was told he would "have a House built, raises, and proceeds of the crop, as well [as] ownership of some of the property. liS Plaintiff alleges that "[a] house had burned down on the property before r got there, and r was living in a trailer house with contractors to finish up, before my living quarter was built. Was told by December at interview, they would be done and would start on where r would live." 6 1 Plaintiff alleges that he did more than Document No. 1-1. 2 "A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (internal quotation marks omitted) (citing Estelle v. Gamble, 97 S. Ct. 285, 11 292 ( 1976) i FED. R. Crv. P. 8 (f) ) . 3 rd. at 8 of 12. S rd. at 9 of 12. 6 rd. (emphasis in original) . 2 was expected and helped to reestablish the orchard, but that he never received a raise or housing. 7 Plaintiff alleges that Robert Clay ("Clay"), the owner of Defendant Clay Development & Construction, never called him by his name, but instead referred to him as Plaintiff alleges that on January 12, about a paycheck he had not received, "bud" or "this Kid."8 2013, he went to ask Clay and that when Plaintiff turned his back on Clay, Clay said, "I could kill him right now," and someone else said, "he better run."9 Plaintiff alleges that as he began to jog away, with his back to Clay, Clay fired three shots from a gun and then continued to fire it.lo he received his check two days Plaintiff alleges that later and continued working on various projects for Defendant in February and March.ll Plaintiff alleges that in April 2013, Clay told Plaintiff "I did try to shoot you," and that on April 26, 2013, Plaintiff reported to the Sheriff's office that Clay had "pulled a gun" on him in January.12 Plaintiff further alleges that Clay emailed him 7 1d. at 3 of 12. 8 1d. at 9 of 12. 9 Document No.1 at 9 of 12. 1d. ("Three shots were fired, a pause and the rest of the weapon was discharge[d] with a different muzzle velocity.") 10 12 1d. at 10 of 12. 3 --------- ,---------- that day, telling him that the Sheriff had spoken to Clay and that Plaintiff was terminated. 13 Plaintiff filed a "Charge of Discrimination" with the EEOC on September 4, 2013,14 and the EEOC issued its Right to Sue letter on September 30, 2013. 15 Plaintiff appears Plaintiff timely filed suit in this Court. to allege wrongful retaliation and age discrimination, contract, dealing .16 and breach of the Defendant moves termination assault, covenant to dismiss of breach of good for based faith failure to on implied and fair state a claim. 17 II. Legal Standard Rule 12(b) (6) provides for dismissal of an action for "failure to state a claim upon which relief can be granted." 12 (b) (6) . When a district court reviews the FED. R. CIV. P. sufficiency of a complaint before it receives any evidence either by affidavit or admission, its task is inevitably a limited one. Rhodes, 94 S. Ct. 1683, 1686 (1974). 13 The issue is not whether the Id. 14 See id. at 3 of 12 to 12 of 12. 15 Id. at 1 of 12. 16 Id. at 3 of 12; Document No. 1-I. 17 Document No. 10. 4 See Scheuer v. plaintiff ultimately will prevail, but whether the plaintiff is entitled to offer evidence to support the claims. Id. In considering a motion to dismiss under Rule 12(b) (6), the district court must construe the allegations in the complaint favorably to the pleader and must accept as true all well-pleaded facts 117 in the complaint. F.3d 242, 247 Lowrey v. See (5th Cir. 1997). Tex. To A&M uni v . survive Sys . , dismissal, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." 1955, 1974 (2007). Bell Atl. Corp. v. Twombly, 127 S. Ct. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference misconduct alleged." (2009) . While allegations . . a that the defendant Ashcroft v. complaint "does not liable 129 S. Iqbal, is Ct. need for 1937, detailed the 1949 factual [the] allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true fact)." (even if doubtful in Twombly, 127 S. Ct. at 1964-65. III. Analysis Plaintiff checked the "age" box on his EEOC discrimination charge, but shows his birth date as July 30, 1988. was fired, Plaintiff was 24 years old. Thus, when he Because Plaintiff is not in the statutorily protected age group, he cannot state a claim for 5 See 29 U.S.C. age discrimination. Fin., 309 F. Supp. 2d 667, 673 § 631(a); Johnson v. Chase Home (E.D. Pa. 2004) (dismissing age discrimination claim because plaintiff was less than 40 years old) . Plaintiff charge. also checked the See 42 U.S.C. § 2000e-3. "retaliation" box on his EEOC To establish a prima facie case of retaliation, Plaintiff must show that (1) he participated in an activity protected by Title VII; (2) his employer took an adverse employment action against him; and (3) a causal connection exists between the protected activity and the adverse employment action. McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). "Ti tle VII does unscrupulous conduct. not protect opposition to all forms of Instead, Title VII protects only opposition to discrimination based on race, color, religion, sex, or national origin." Brown v. United Parcel Servo , Inc., 406 F. App'x 837, 840 (5th Cir. 2010) (citations and internal quotation marks omitted) . The Fifth Circuit "ha[s] consistently held that a vague complaint, wi thout any reference to an unlawful employment practice under Title VII, does not constitute protected activity." Dallas Indep. Sch. Dist., 448 F. App'x 485, 493 Davis (5th Cir. V. 2011) (collecting cases) . Plaintiff asserts that Defendant fired him after he reported the alleged shooting incident to the Sheriff's office. has not alleged that this report to law enforcement Plaintiff had any relationship to discrimination based on race, color, religion, sex, 6 or national origin. Plaintiff therefore fails to state a claim for retaliation under Title VII. See Harris-Childs v. Medco Health Solutions, Inc., 169 F. App'x 913, 916 (5th Cir. 2006) retaliation claim specifically where "Appellant complained of racial does or not (finding no allege sexual that harassment, she only harassment") . Both Plaintiff and Defendant are non-d,iverse citizens of the State of Texas. The Court therefore only has original jurisdiction over Plaintiff's federal claims against Defendant. Plaintiff's remaining allegations of assault, breach of implied contract, and breach of the covenant of good faith and fair dealing are state law claims under Texas law. The Court, in its discretion, declines to exercise supplemental jurisdiction over these remaining state law claims. See 28 U.S.C. 1367(c) § to exercise supplemental ("The district courts may decline jurisdiction if (3) the district court has dismissed all claims over which it has original jurisdiction.") Tex. 2012) exercise i Oliver v. Lewis, (Rosenthal, jurisdiction J.) over 891 F. Supp. 2d 839, ("The 'general rule' pendent state-law 843 is to decline to claims when federal claims are eliminated from a case before trial. a federal-law claim is 'eliminated at an (S.D. early stage all . When of the litigation, the District Court has a powerful reason to choose not to continue to exercise jurisdiction.''') (quoting Brookshire Bros. Holding, Inc. v. Dayco Products, Inc., 554 F.3d 595, 602 (5th Cir. 7 2009); Enochs v. 2011) ) . Lampasas County, Plaintiff's state 641 F.3d 155, law claims are 161 (5th Cir. therefore dismissed without prejudice to refiling them in state court. IV. Order For the foregoing reasons, it is ORDERED that Defendant Clay Development & Construction's Rule 12(b) (6) Motion to Dismiss (Document No. 10) is GRANTED as to all federal discrimination claims under Title VII and the Age Discrimination in Employment Act, and those claims are DISMISSED with prejudice; and all state law claims alleged or implied by Plaintiff for assault, breach of contract or implied contract, breach of the covenant of good faith and fair dealing, like, are DISMISSED without prejudice and the to being refiled in the appropriate state court. The Clerk will enter this Order, providing a correct copy to 111 all counsel of record. SIGNED in Houston, Texas, on this I~~ay of March, 2014. WERLEIN, JR. STATES DISTRICT JUDGE 8
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