Diggs v. Tango Management Consulting Inc

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LEON DIGGS, §

§

Plaintiff, §

§

v. § Civil Action No. 3:20-CV-3425-K

§

TANGO MANAGEMENT §

CONSULTING, INC. f/k/a TANGO §

MANAGEMENT, LLC, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Tango Management Consulting, Inc. f/k/a Tango

Management, LLC’s Motion to Dismiss Plaintiff’s Action Pursuant to FRCP 12(b)(6)

(the “Motion”) (Doc. No. 16). The Court has carefully considered the Motion, the

response, the reply, the applicable law, and relevant portions of the record.

I. Factual Background

Plaintiff Leon Diggs (“Plaintiff”), an African-American male, began working for

Defendant Tango Management Consulting, Inc. f/k/a Tango Management, LLC

(“Defendant”) in April 2018. Am. Compl. (Doc. No. 12) at 2, ¶3; 3, ¶10; 4, ¶12.

Plaintiff remains employed by Defendant to-date. Id. at 3, ¶10; 4, ¶12. Beginning

March 2020, Plaintiff alleges he was “subjected to Defendant’s pattern or practice of

ORDER – PAGE 1

discrimination and company-wide discrimination policies” because of Plaintiff’s race.

Id. at 3; ¶8; 4, ¶12. This discriminatory treatment includes the denial of “resources

and teaming and business opportunities,” “lost income”, beratement and humiliation

in front of co-workers, allowing employees “to segregate,” unfair and unwarranted

discipline, and unequal access to personal leave. Id. at 4, ¶12; 6, ¶17; 7, ¶22; 7-8, ¶23;

8-9, ¶26; 9, ¶27.

On March 27, 2020, Plaintiff notified Defendant that he would be “taking the

late afternoon off after all administrative duties were complete.” Id. at 4, ¶13. Plaintiff

told “his project team” that he had learned earlier in the week that “members of his

family” had contracted the COVID-19 virus and were in critical condition. Id. Plaintiff

left work that afternoon and then found his computer access was restricted. Id. at ¶14.

At some time after 3:00 p.m., Plaintiff contacted the IT Department and an unnamed

colleague who both confirmed Plaintiff’s access had been restricted. Id. Plaintiff then

alleges that “one of his colleagues . . . informed [Plaintiff] that he had been terminated.”

Id. The colleague told Plaintiff that manager Karthic Gunasekaran had fired Plaintiff.

Id. at 5, ¶16. Plaintiff alleges that his “termination was the direct result of Defendant’s

management team assuming he had contracted the [COVID-19] virus.” Id. Plaintiff

alleges that Karthic Gunasekaran knew of his “family’s diagnosis of COVID-19” and

had asked Plaintiff whether he too had contracted it. Id.

ORDER – PAGE 2

On March 30, 2020, Plaintiff “sent a communication” to two managers,

including Karthic Gunasekaran, and copied a third manager as well as Defendant’s

“Director of HR, COO, and CEO”. Id. Plaintiff told them that his computer access

was restricted and also that his manager failed to “reach out” to Plaintiff after learning

about his “family’s COVID-19 diagnosis”. Id. Plaintiff alleges that he “demanded a

reason for his termination/restricted access.” Id. at 6, ¶18. Defendant’s “COO” Brad

Viagini responded to Plaintiff “stating that his access should not have been restricted”

and he should have received a temporary password from IT, but it did not send

properly. Id.

Plaintiff filed a charge of employment discrimination against Defendant with

the Equal Employment Opportunity Commission (“EEOC”) on May 17, 2020. Id. at

2, ¶5. Plaintiff alleges he received by letter a “Notice of Right to Sue” on August 20,

2020. Id. Plaintiff also alleges that the EEOC “attempted” to email Plaintiff the Notice

of Right to Sue on July 10, 2020, “however said document was not properly sent.” Id.

at 2-3, ¶6. Plaintiff also alleges that the EEOC attempted to email the Notice of Right

to Sue to his attorney, but it was sent to the wrong email address. Id.

Plaintiff filed this action against Defendant on November 16, 2020. Although

difficult to discern from his Amended Complaint, Plaintiff appears to asserts claims

against Defendant for violations of the Family Medical Leave Act, the Fair Labor

ORDER – PAGE 3

Standards Act, the Equal Pay Act, and Title VII for discrimination, retaliation, and

hostile work environment related to Plaintiff’s race and gender. Defendant filed the

instant Motion which is ripe for determination.

II. Legal Standard

In considering a Rule 12(b)(6) motion, a court must determine whether the

plaintiff has sufficiently stated a claim upon which relief may be granted. FED. R. CIV.

P. 12(b)(6). A well-pleaded complaint must allege facts upon which the claims are

based and not be a conclusory recitation of the elements of a cause of action. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must state sufficient facts

such that the “claim has facial plausibility” and is not merely “possible.” Aschcroft v.

Iqbal, 556 U.S. 662, 678 (2009). A plaintiff pleads a claim with facial plausibility when

the “factual content . . . allows the court to draw the reasonable inference that the

defendant is liable.” Id. The complaint must allege sufficient facts to “give the

defendant fair notice” of the plaintiff’s claims against the defendant. Twombly, 550

U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The alleged facts must

be facially plausible such that the facts nudge the plaintiff’s claims “across the line from

conceivable to plausible.” Id. at 570.

The Court “accept[s] all well-pleaded facts as true and view[s] those facts in the

light most favorable to the plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007)

ORDER – PAGE 4

(per curiam). The Court “do[es] not accept as true conclusory allegations, unwarranted

factual inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th

Cir. 2007) (quoting Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)).

The Court must generally determine a motion to dismiss for failure to state a

claim based solely on the pleadings, including any attachments thereto. Collins v.

Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). The Fifth Circuit also

allows the district court to consider documents attached to the motion to dismiss when

those documents “are referred to in the plaintiff’s complaint and are central to [the

plaintiff’s] claim.” Id. at 498–99 (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp.,

987 F.2d 429, 431 (7th Cir. 1993)).

III. Application of the Law

Defendant moves the Court to dismiss all of Plaintiff’s claims. Defendant argues

that Plaintiff failed (1) to exhaust his administrative remedies on his Title VII gender

discrimination claim, (2) fails to state a claim under Title VII for gender discrimination,

the Equal Pay Act, the Fair Labor Standards Act (“FLSA”), and the Family Medical

Leave Act (“FMLA”), and (3) failed to timely file his Title VII claims based on both

gender and race within the 90-day deadline and submits documentation in support.

Plaintiff responds that he sufficiently alleges a claim under the FMLA for both

retaliation and interference and also a claim under the FLSA, and that Defendant is

ORDER – PAGE 5

attempting “to hold Plaintiff to an evidentiary standard rather than a notice pleading

standard”. Resp. at 3. Plaintiff also contends that he timely filed his Title VII

discrimination claims within 90 days after receiving his Notice of Right to Sue. Finally,

Plaintiff explicitly waives his Title VII claim based on gender discrimination and also

his claim under the Equal Pay Act. In its Reply, Defendant maintains that Plaintiff

fails to plead a claim under the FMLA because he was never denied FMLA leave and

never suffered an adverse employment action. Defendant also argues that Plaintiff’s

FLSA claim must be dismissed because he is exempt from receiving overtime under the

FLSA. Finally, Defendant contends that Plaintiff received Notice of Right to Sue in

the July 10, 2020 email, pointing again to the exhibits submitted with its Motion,

which triggered the 90-day deadline to file suit.

A. Claim for Violating the Family Medical Leave Act

Under the Family Medical Leave Act (“FMLA”), an employee is allowed to take

reasonable leave from his job for specific reasons, including the care of certain family

members who have a serious health condition. 28 U.S.C. § 2601(b)(2). The FMLA

makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of

or the attempt to exercise” a substantive FMLA right or “to discharge or in any other

manner discriminate against any individual for opposing any practice made unlawful

by this chapter.” Id. § 2615(a)(1) & (2). To establish a prima facie case for retaliation

ORDER – PAGE 6

under the FMLA, the plaintiff must show that (1) he was protected under the FMLA,

(2) he suffered a materially adverse action, and (3) there is a causal link between

protected activity under the FMLA and the adverse action. Wheat v. Florida Parish Juv.

Justice Comm’n, 811 F.3d 702, 705 (5th Cir. 2016) (elements of prima facie case of

retaliation under both Title VII and the FMLA). “To establish a prima facie case of

interference under FMLA, a plaintiff must show: (1) he was an eligible employee; (2)

his employer was subject to the FMLA’s requirements; (3) he was entitled to leave; (4)

he gave proper notice of his intention to take FMLA leave, and (5) his employer denied

him the benefits to which he was entitled under the FMLA.” Caldwell v. KHOU-TV,

850 F.3d 237, 245 (5th Cir. 2017) (citing Lanier v. Univ. of Tex. Sw. Med. Ctr., 527 F.

App’x 312, 316 (5th Cir. 2013)).

At the outset of its analysis, the Court addresses Plaintiff’s responsive argument

that he is not required to plead a “prima facie case” of interference or retaliation under

the FMLA. Resp. at 3. Plaintiff is correct that “for purposes of surviving a Rule

12(b)(6) motion, an employment discrimination plaintiff need not plead a prima facie

case of discrimination.” Puente v. Ridge, 324 F. App’x 423, 427 (5th Cir. 2009).

However, a plaintiff is required to “plead sufficient facts on all of the ultimate elements

of a disparate treatment claim to make his case plausible.” Chhim v. Univ. of Tex., 836

F.3d 467, 470 (5th Cir. 2016); accord Besser v. Tex. Gen. Land Office, 834 F. App’x 876,

ORDER – PAGE 7

882 (5th Cir. 2020) (quoting Puente, 324 F. App’x at 427-28) (“[N]o plaintiff is exempt

from his obligation to ‘allege facts sufficient to state all the elements of his claim.’”).

Therefore, “the prima facie standard nonetheless has some relevance at the motion-to-

dismiss stage.” Besser, 834 F. App’x at 881. In the context of this Rule 12(b)(6)

analysis, the Court does not decide whether Plaintiff proved each element of a prima

facie case of his FMLA claim; rather, the court references those elements only in

determining whether Plaintiff has pled sufficient facts to state all the elements of his

claim. Id. (“[T]he district court did not hold that Besser had not proved each element

of a prima facie case of discrimination, rather it used the language of a prima facie case

as a framing device to determine whether Besser had sufficiently alleged facts to support

the ultimate elements of each claim. The district court’s references to a prima facie case

were appropriate.”).

1. FMLA Retaliation Claim

Defendant argues that Plaintiff fails to state a claim for retaliation under the

FMLA because he fails to allege any adverse action was taken against him. Outside of

restating certain factual allegations from his Amended Complaint, Plaintiff’s response

makes only a cursory reference to his retaliation claim, stating that “he was terminated

the same day that he requested time off to care for his sick family members who were

ORDER – PAGE 8

in critical condition due to COVID-19 pandemic, which qualifies as an interference

claim and retaliation claim under the FMLA.” Resp. at 2.

An element of a prima facie case of retaliation is that the employer took a

materially adverse action against the plaintiff. Wheat, 811 F.3d at 705. Rejecting the

more limiting standard of “ultimate employment decisions”, the Supreme Court

defined “materially adverse actions” as those actions that would dissuade a reasonable

employee from exercising his rights to file a discrimination claim. Burlington Northern

& Santa Fe Ry. Co. & White, 548 U.S. 53, 67-68 (2006); see Lushute v. La. Dep’t of Soc.

Servs., 479 F. App’x 553, 555 (5th Cir. 2012) (“In other words, an employee suffers an

‘adverse employment action’ if ‘a reasonable employee would have found the

challenged action materially adverse, which in this context means it well might have

dissuaded a reasonable worker from making or supporting a charge of discrimination.”).

Plaintiff’s responsive argument refers only to his alleged termination as the

adverse employment action. Resp. at 2. However, in his Amended Complaint, Plaintiff

alleges that he “suffered an adverse employment decision (being locked out of the

[computer] system and terminated)”. Am. Compl. at 5, ¶14. Because the Court looks

to the allegations in the Complaint, the Court will consider both the alleged

termination and restricted computer access in determining whether Plaintiff has

plausibly pled this retaliation claim.

ORDER – PAGE 9

a. Restricted Computer Access

Plaintiff alleges “that his computer access had been restricted” on the same day,

March 27, 2020, that he “informed Defendant that he would be blocking his calendar

for the afternoon and taking the late afternoon off”. Am. Compl. at 4, ¶¶13-14. After

discovering this, Plaintiff alleges he contacted the “IT Manager and a colleague after 3

p.m. to see if his access truly had been compromised or restricted, and in fact it had

been restricted.” Id. at ¶14. On March 30, 2020, Plaintiff alleges that he “sent a

communication” to several managers and executives in which he “demanded a reason

for his termination/restricted access.” Id. at 6, ¶18. Plaintiff then alleges that Brad

Viagini, “Defendant’s COO”, responded and informed Plaintiff that “his access should

not have been restricted and that the IT Rep . . . should have sent a temporary

password, but it did not send properly.” Id.

The Fifth Circuit has not specifically addressed whether restricted computer

access constitutes a materially adverse employment action. However, one district court

in this Circuit has concluded that “[t]he denial of access to a work computer system

may rise to the level of an adverse action when ‘it is at least arguable’ that the denial

of access ‘materially affected the plaintiff’s employment by making it more difficult for

him to complete his work.’” Lipovsky v. Vilsack, Civ. Action No. 4:14-CV-0047-DMB-

JMV, 2016 WL 4919894, at *18 (N.D. Miss. Sept. 14, 2016). Plaintiff does not allege

ORDER – PAGE 10

that his restricted computer access affected his employment in any way, let alone

materially. Plaintiff alleges simply that his computer access was restricted from March

27 through March 30. The Court takes judicial notice that March 27, 2020 was a

Friday and March 30, 2020 was a Monday. Plaintiff merely alleges that his computer

access was restricted over a weekend. As such, these allegations are insufficient for the

Court to reasonably infer that Defendant took a materially adverse action against

Plaintiff based on restricted computer access. Id. (“The denial of access to a work

computer system may rise to the level of an adverse action when ‘it is at least arguable’

that the denial of access ‘materially affected the plaintiff’s employment by making it

more difficult for him to complete his work.’”). Because a materially adverse action is

an essential element of a retaliation claim, Plaintiff did not plausibly plead an FMLA

claim for retaliation on the basis that his computer access was restricted. See Besser,

834 F. App’x at 882 (district court may consider elements “of a prima facie case as a

framing device” in determining whether plaintiff sufficiently pled facts to support his

claim); id. (“[N]o plaintiff is exempt from his obligation to ‘allege facts sufficient to

state all the elements of his claim.’”).

b. Termination

Plaintiff alleges that he suffered an adverse employment decision in that he was

terminated “because he sought FMLA and/or leave to take case of his sick family

ORDER – PAGE 11

members.” Am. Compl. at 4-5, ¶14. The factual allegations addressing his termination

are that “one of his colleagues . . . informed [Plaintiff] that he had been terminated”

and that he “was told by his coworker’s [sic] that he had been fired”. Id. at 4-5, ¶14;

5, ¶16. These are truly conclusory allegations and unwarranted factual inferences that

Plaintiff’s employment was terminated, based on nothing more than the statement of

an unnamed colleague who Plaintiff does not allege had any such decision-making

authority. In fact, Plaintiff alleges that he “is employed by Defendant” and “has been

employed Defendant [sic] for two (2) years, from April 10, 2018 until present.” Id. at

3, ¶10; 4, ¶12. These allegations actually support the reasonable inference that Plaintiff

has continued to be employed by Defendant and that there has been no break in his

employment. Based on the allegations in the Amended Complaint, the Court cannot

reasonably infer that Plaintiff suffered an adverse employment action in that he was

terminated. Iqbal, 556 U.S. at 678 (factual allegations must “allow[] the court to draw

the reasonable inference that the defendant is liable.”); see Twombly, 550 U.S. at 570

(alleged facts must be facially plausible such that the facts nudge the plaintiff’s claims

“across the line from conceivable to plausible.”). Because an adverse employment

action is an essential element of an FMLA retaliation claim, Plaintiff did not plausibly

plead an FMLA claim for retaliation on the basis that he was terminated. See Besser,

834 F. App’x at 882 (district court may consider elements “of a prima facie case as a

ORDER – PAGE 12

framing device” in determining whether plaintiff sufficiently pled facts to support his

claim); id. (“[N]o plaintiff is exempt from his obligation to ‘allege facts sufficient to

state all the elements of his claim.’”).

For these reasons, Plaintiff has failed to sufficiently state an FMLA retaliation

claim. The Court grants the Motion as to this claim and it is dismissed without

prejudice.

2. FMLA Interference Claim

Defendant argues that Plaintiff’s claim for interference under FMLA must also

be dismissed because he does not allege that he was denied leave, which is an essential

element. Plaintiff responds that he sufficiently pled this point because he alleges “that

he was terminated the same day that he requested time off to care for his sick family

members who were in critical condition due to COVID-19, which qualifies as an

interference claim and retaliation claim under the FMLA.” Resp. at 2. Plaintiff also

contends that he is not required to provide “detailed factual allegations” at this stage.

Id.

As essential element of an FMLA interference claim is that the plaintiff’s

employer denied him the benefits that he is entitled to under the FMLA. Caldwell, 850

F.3d at 245. In his Amended Complaint, Plaintiff alleges that he notified his “project

team” several family members had contracted the COVID-19 virus and were in critical

ORDER – PAGE 13

condition. Am. Compl. at 4, ¶13. Then, Plaintiff alleges he “informed Defendant that

he would be blocking his calendar for the afternoon and taking the late afternoon off

after all administrative duties were complete.” Id. Plaintiff makes no allegations

regarding Defendant’s response to his request of “taking the late afternoon off”. In

fact, Plaintiff’s allegations indicate he did leave work that afternoon as it was then he

discovered his computer access had been restricted. See id. at ¶14.

Plaintiff clarifies in his Response, however, that he sufficiently states this

element because he alleges “that he was terminated the same day that he requested

time off to care for his sick family members who were in critical condition due to

COVID-19, which qualifies as an interference claim and retaliation claim under the

FMLA.” Resp. at 2.

Plaintiff is correct that he is not required to provide detailed factual allegations.

However, a plaintiff is required to “plead sufficient facts on all of the ultimate elements

of a disparate treatment claim to make his case plausible.” Chhim, 836 F.3d at 470.

The factual allegations must “allow[] the court to draw the reasonable inference that

the defendant is liable.” Iqbal, 556 U.S. at 678; see Twombly, 550 U.S. at 570 (facts

alleged must be facially plausible such that they nudge the plaintiff’s claims “across the

line from conceivable to plausible.”). In his Response, Plaintiff contends that alleging

he was terminated the same day he requested time off sufficiently pleads this element.

ORDER – PAGE 14

However, the Court has already concluded that the allegations regarding termination

are not facially plausible. See Twombly, 550 U.S. at 570 (alleged facts must be facially

plausible such that the facts nudge the plaintiff’s claims “across the line from

conceivable to plausible.”). Plaintiff’s sole reliance on those allegations as satisfying

this essential element of the claim fails him. Denial of benefits is an essential element

of an FMLA interference claim which Plaintiff did not allege. Therefore, Plaintiff did

not plausibly plead an FMLA claim for interference. See Besser, 834 F. App’x at 882

(district court may consider elements “of a prima facie case as a framing device” in

determining whether plaintiff sufficiently pled facts to support his claim); id. (“[N]o

plaintiff is exempt from his obligation to ‘allege facts sufficient to state all the elements

of his claim.’”). The Court grants the Motion as to this claim and it is hereby

dismissed without prejudice.

B. Remaining Claims

In his Response, Plaintiff voluntarily waives his claims for gender discrimination

under Title VII and for violation of the Equal Pay Act. Resp. (Doc. No. 24) at 5.

Accordingly, the Court dismisses those claims. As for Plaintiff’s FLSA claim, the Court

has taken the well-pleaded facts as true and viewed those in the light most favorable to

Plaintiff. The Court concludes that Plaintiff has pleaded his FLSA claim with facial

plausibility as the “factual content . . . allows the court to draw the reasonable inference

ORDER – PAGE 15

that the defendant is liable.” Iqbal, 556 U.S. at 678; accord Twombly, 550 U.S. at 570

(2007); see also White v. U.S. Corrections, L.L.C., 996 F.3d 302, 310 (5th Cir. 2021)

(“[W]hether an employee is exempt under the FLSA is primarily a question of fact

typically better suited for summary judgment.”). Because Plaintiff has sufficiently

stated his FLSA claim, the Court denies Defendant’s Motion to Dismiss this claim.

See FED. R. CIV. P. 12(b)(6). The Court’s ruling on this claim is not an indication of

whether it may survive an attack on summary judgment.

The Court also denies the Motion to Dismiss Plaintiff’s Title VII claims on the

basis that Plaintiff did not timely file them within 90 days of receipt of the EEOC’s

Notice of Right to Sue. The timeliness of Plaintiff’s Title VII claims based on the 90-

day limitations period is treated as an affirmative defense. See Sivertson v. Clinton, Civ.

Action No. 3:11-CV-0836-D, 2011 WL 4100958, at *2 (Sept. 14, 2011)(Fitzwater,

CJ) (collecting cases). “Although dismissal under rule 12(b)(6) may be appropriate on

a successful affirmative defense, that defense must appear on the face of the complaint.”

EPCO Carbon Dioxide Prods., Inc. v. JP Morgan Chase Bank, NA, 467 F.3d 466, 470 (5th

Cir. 2006); accord Sivertson, 2011 WL 4100958, at *2. “In the usual case, this court is

unable to grant dismissal under Rule 12(b)(6) based on an affirmative defense because

it rarely appears on the face of the complaint.” Sivertson, 2011 WL 4100958, at *2.

ORDER – PAGE 16

The Court does not find that this affirmative defense appears clearly on the face

of Plaintiff’s Amended Complaint. See id. at *3 (defendant was not entitled to dismissal

under Rule 12(b)(6) on basis of 90-day period of limitations where the plaintiff did

not “plead[] herself out of court by admitting to all of the elements of the defense.”).

Plaintiff does allege that the EEOC “attempted” to email Plaintiff and his attorney the

Notice of Right to Sue on July 10, 2020; however, Plaintiff then alleges that the

“document was not properly sent [to Plaintiff]” and it was sent to the wrong email

address for his attorney. Am. Compl. at 2-3, ¶6. But Plaintiff also alleges that he did

receive the EEOC’s “Notice of Right to Sue” by mail on August 20, 2020. Id. at 2, ¶5.

Based on the allegation of August 20, 2020 as the receipt date, Plaintiff’s Title VII

claims filed on November 16, 2020 fell within the 90-day limitations period.

The case law is well-established that dismissal under Rule 12(b)(6) may be

appropriate where an affirmative defense appears clearly on the face of Plaintiff’s

Amended Complaint. See Love Terminal Partners, L.P. v. City of Dallas, 527 F.Supp.2d

538, 549-50 (N.D. Tex. 2007)(Fitzwater, J.) (collecting cases). Based on the

allegations, the Court cannot conclude that this affirmative defense of the 90-day

limitations period clearly appears on the face of Plaintiff’s Amended Complaint. The

Court notes that this ruling is based only on consideration of the sufficiency of

ORDER – PAGE 17

Plaintiff’s pleadings at the motion to dismiss stage. Defendant may re-urge the

limitations issue, if appropriate, by way of a motion for summary judgment.

C. Leave to Amend

When a party cannot amend a pleading as a matter of course, the party may

amend only “with the opposing party’s written consent or the court’s leave.” FED. R.

CIV. P. 15(a)(2). A formal motion under Rule 15(a) need not always be filed, but the

party must “give the court some notice of the nature of his or her proposed

amendments” and support the request for leave to amend with “some specificity” which

is required. Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016); accord

U.S. ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 387 (5th Cir.

2003) (“A formal motion is not always required, so long as the requesting party has set

forth with particularity the grounds for the amendment and the relief sought.”). Rule

15 provides that leave should be freely given “when justice so requires.” FED. R. CIV. P.

15(a)(2). While leave to amend under Rule 15 should be freely given, it is “by no

means automatic.” Goldstein v. MCI WorldCom, 340 F.3d 238, 254 (5th Cir. 2003).

Moreover, the decision whether to grant or deny leave to amend a pleading is a matter

within the district court’s discretion. See Thomas, 832 F.3d at 590–91.

Plaintiff includes a single-sentence, general curative request for leave to amend

his complaint—“If the court finds reason to dismiss any of Plaintiff’s claims, he should

ORDER – PAGE 18

be allowed to amend his complaint.” Resp. at 5. A plaintiff who simply “tack[s] on a

general curative amendment request” in response to a motion to dismiss does not

provide a sufficient basis for why the court should grant leave. Goldstein, 340 F.3d at

254. “[A] bare request in an opposition to a motion to dismiss—without any indication

of the particular grounds on which the amendment is sought, cf. FED. R. CIV. P. 7(b)—

does not constitute a motion within the contemplation of Rule 15(a).” Willard, 336

F.3d at 387 (internal quotation omitted). Plaintiff provides no such indication. For

these reasons, the Court denies Plaintiff’s general curative request to amend his

complaint.

If Plaintiff wishes to amend, he must file a motion for leave to amend his

Amended Complaint that complies with the applicable Federal Rules of Civil Procedure

and the Local Civil Rules, which includes the requirement to attach a copy of the

proposed amended pleading as well as the requirement to confer with opposing counsel.

Should Plaintiff choose to file a motion for leave to amend he must do so within 30

days from the date of this Memorandum Opinion and Order.

IV. Conclusion

The Court grants Defendant’s Motion to Dismiss as to Plaintiff’s Title VII claim

based on gender discrimination and his claim under the Equal Pay Act since Plaintiff

voluntarily waives these claims. The Court grants the Motion to Dismiss as to

ORDER – PAGE 19

Plaintiff's claim under the FMLA because the Court cannot reasonably infer that

Defendant is liable. This claim is dismissed without prejudice. The Court denies

the Motion to Dismiss Plaintiff's Title VII claim for race discrimination based on the

90-day limitations period and also Plaintiff's FLSA claim because the Court finds it

was sufficiently pled.

SO ORDERED.

Signed August 26", 2021.

ED KINKEADE

UNITED STATES DISTRICT JUDGE

ORDER — PAGE 20