Girasole v. Caliber Home Loans Inc

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARK GIRASOLE, §

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Plaintiff, §

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v. § Civil Action No. 3:21-CV-1560-X

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CALIBER HOME LOANS, INC., §

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Defendant. §

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MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Caliber Homes Loans, Inc.’s (“Caliber”) motion

to dismiss Plaintiff Mark Girasole’s second amended complaint. [Doc. No. 33]. For

the reasons explained below, the Court GRANTS the motion and DISMISSES

WITH PREJUDICE Girasole’s claims.

I. Factual Background

Girasole worked for Caliber from July 2017 to September 2020 as Assistant

Vice President of Finance.1 In March 2020, many employers shifted to work-from-

home policies in response to COVID-19.

On March 12, 2020, one of Girasole’s team members, Laura Lawson, reported

to Girasole that she was “uncomfortable” working in person “due to [her]

compromised immune system.”2 Girasole asked his supervisor, Kevin Purdon, if

1 At the motion to dismiss stage, the Court accepts all of Girasole’s well-pleaded facts as true.

Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007) (per curiam).

2 Doc. 31 at 4.

Lawson could work remotely, and Purdon responded that they should consult with

Human Resources (“HR”). HR confirmed that Caliber’s policy at that time was to let

different departments within Caliber make independent decisions about remote

work. HR thus told Girasole to ask Purdon how to proceed. When Girasole said he’d

already asked Purdon, HR responded that Lawson could take paid time off if needed.

Later that day, Caliber issued a “Corporate Communication” instructing

employees, including Purdon, to share guidelines with team leaders that included the

following: “Employees who express concerns about working in the office should be

allowed to work remotely on a temporary basis (when feasible) and/or utilize Paid

Sick Leave and/or PTO.”3

The next day, March 13, 2020, Girasole emailed Purdon and stated that “if

employees are not comfortable coming in the office, we cannot make them.”4 Purdon

responded that he would “review each individual situation” to decide who could work

remotely, and noted that “[a]ny employee uncomfortable with [his] decision c[ould]

involve HR as additional options may be available.”5 Two days later, Girasole and

Purdon received an email from Caliber “encouraging all employees to work from home

that are able to effective immediately through March 30th.”6

3 Id. at 6.

4 Id.

5 Id.

6 Id. at 7 (emphasis removed).

In July and August of 2020, Purdon expressed concerns to HR about two

interactions between Girasole and Lawson, both of which Lawson had reported to

Purdon with email records to corroborate her claims. First, Girasole instructed

Lawson to work “off the clock” to avoid logging overtime hours. When reporting this

to HR, Purdon wondered whether Girasole was retaliating against Lawson due to her

recent complaints about Girasole and noted that he “was unable to determine any

legitimate reason for” Girasole’s actions.7

And second, Girasole adjusted Lawson’s timecard without obtaining approval

or reporting his actions. When Lawson had confronted Girasole about this, he said

he tried to adjust her hours down to avoid overtime hours, and that he had

accidentally adjusted her hours further down than intended, leaving her below her

maximum, non-overtime hours. Girasole told Lawson he could not fix the problem

and told her she would lose the time unless she opened a case with HR. But after

Lawson reported this and looped Purdon into the email conversation, Girasole agreed

to open a case with HR on Lawson’s behalf to fix the problem. Girasole then called

Lawson to confront her about looping Purdon into their conversation, which made

Lawson “extremely uncomfortable.”8

Purdon consulted with Caliber management and HR, forwarding along the

relevant email exchanges. Purdon emailed others at Caliber to see if transferring

7 Id. at 8.

8 Id. at 11–12.

Girasole was a possibility, but nothing came of it. Ultimately, after a week-long

investigation, HR concluded that Girasole should be terminated.

Caliber’s stated reason for terminating Girasole was that he adjusted another

employee’s timecard to prevent her from earning overtime pay and that he did so in

retaliation against her. Girasole says Caliber’s company policy required him to adjust

the timecard because Lawson failed to seek prior approval for overtime pay, and he

claims that Caliber used this incident as pretext to terminate him in retaliation for

his March 2020 complaint against Purdon.

After timely and properly exhausting his administrative remedies and

receiving a right-to-sue letter from the Equal Employment Opportunity Commission,

Girasole sued Caliber. The Court granted Caliber’s motion to dismiss Girasole’s first

amended complaint and granted Girasole leave to amend. Girasole’s second amended

complaint, like his first, alleges (1) retaliation under the Americans with Disabilities

Act (the “ADA”); (2) age discrimination under the Age Discrimination in Employment

Act (the “ADEA”); and (3) sex discrimination under Title VII of the Civil Rights Act

of 1964 (“Title VII”).9

Caliber now moves to dismiss Girasole’s second amended complaint.

II. Legal Standards

Under Federal Rule of Civil Procedure 12(b)(6), the Court evaluates the

pleadings by “accepting all well-pleaded facts as true and viewing those facts in the

9 Doc. 31 at 15–27.

light most favorable to the plaintiff.”10 To survive 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.’”11 A claim is facially plausible “when the plaintiff pleads

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

defendant is liable for the misconduct alleged.”12 Although the plausibility standard

does not require probability, “it asks for more than a sheer possibility that a

defendant has acted unlawfully.”13 In other words, the standard requires more than

“an unadorned, the-defendant-unlawfully-harmed-me accusation.”14 “A pleading

that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action will not do.’”15 “Nor does a complaint suffice if it tenders ‘naked assertion[s]’

devoid of ‘further factual enhancement.’”16

III. Analysis

A. Retaliation

First, the Court will address Girasole’s ADA retaliation claim. Where, as here,

a plaintiff seeks to prove retaliation circumstantially, the McDonnell Douglas

10 Stokes, 498 F.3d at 484.

11 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)).

12 Id.

13 Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right

to relief above the speculative level[.]”).

14 Iqbal, 556 U.S. at 678.

15 Id. (quoting Twombly, 550 U.S. at 555).

16 Id. (quoting Twombly, 550 U.S. at 557).

burden-shifting framework applies.17 This standard is “an evidentiary framework,

not a pleading standard,”18 so “a plaintiff need not make out a prima facie case [of

retaliation] in order to survive a Rule 12(b)(6) motion to dismiss for failure to state a

claim.”19 But a plaintiff must “plead sufficient facts on all of the ultimate elements

of a [retaliation] claim to make his case plausible.”20 So it is “helpful to reference” the

McDonnell Douglas framework when “determining whether a plaintiff has plausibly

alleged the ultimate elements” of a retaliation claim.21 To establish a prima facie

ADA retaliation claim, a plaintiff “must demonstrate that: (1) he engaged in protected

activity, (2) an adverse employment action occurred, and (3) a causal link exists

between the protected activity and the adverse employment action.”22

Protected activity means “opposing any act or practice made unlawful by the

ADA.”23 The ADA prohibits “discriminat[ion] against a qualified individual on the

basis of disability in regard to . . . the hiring, advancement, or discharge of

employees.”24 The ADA defines “disability” as “a physical or mental impairment that

substantially limits one or more major life activities of [an] individual.”25 The ADA

17 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see Seaman v. CSPH, Inc., 179 F.3d

297, 300 (5th Cir. 1999) (holding that the McDonnell Douglas framework applies to ADA cases that

allege only circumstantial evidence of discrimination).

18 Alvardo v. ValCap Grp., LLC, No. 3:21-CV-1830-D, 2022 WL 953331, at *3, n.2 (N.D. Tex.

Mar. 30, 2022) (Fitzwater, J.) (citing Swierkiewics v. Sorema N.A., 534 U.S. 506, 512 (2002)).

19 Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013).

20 Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016).

21 Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019) (cleaned up).

22 St. John v. Sirius Sols., LLLP, 299 F. App’x 308, 309 (5th Cir. 2008).

23 Id. (cleaned up) (quoting 42 U.S.C. § 12203(a)).

24 42 U.S.C. § 12112(a).

25 Id. at § 12102(1).

further qualifies “major life activities” as “includ[ing], but [] not limited to, caring for

oneself, performing manual tasks, seeing, hearing, eating, sleeping,” and other

activities that have great importance to daily life.26

Girasole claims he engaged in protected activity when he “requested a

reasonable accommodation which would enable Lawson to work remotely.”27

Girasole’s argument fails because he presents no evidence that Lawson suffered from

a “disability” as defined by the ADA. Lawson merely requested a stay-at-home

accommodation because she was concerned with potential risks COVID-19 might

pose to her.28 The Court already held that “a general request for accommodation for

all employees, including non-disabled employees,” does not constitute protected

activity for the purposes of an ADA retaliation claim.29 Now, Girasole seeks to amend

this defect by pleading that he requested an accommodation for one employee

specifically: Lawson.30 But instead of showing that Lawson had “a physical or mental

impairment that substantially limit[ed] one or more major life activities,” such as

“performing manual tasks, seeing, hearing, [or] eating,” Girasole describes Lawson

as “ha[ving] had some medical challenges for at least the past 12 months” and as

being “concerned about her weakened immune system.”31 Under the ADA, that’s not

26 Id. at § 12102(2)(A).

27 Doc. No. 31 at 22.

28 Id. at 4–5.

29 Doc. 30 at 9.

30 Doc. 31 at 4–6.

31 42 U.S.C. § 12102(1); id. § 12102(2)(A); Doc. 31 at 4–6. Girasole says Lawson stated that

she was “uncomfortable due to [her] compromised immune system,” and Girasole elsewhere says that

Lawson was “a special circumstance due to her sickness the last 12–18 months” and describes Lawson

as “a cancer survivor.” Doc. 31 at 4, 6, 16. These additional descriptors do not add enough to establish

a disability.32 Since Girasole didn’t plead facts showing Lawson suffered from a

disability, he didn’t engage in protected activity under the ADA when he requested a

reasonable accommodation for her.33

Accordingly, the Court GRANTS Caliber’s motion as to Girasole’s retaliation

claim. The Court dismissed Girasole’s previous complaint on the same ground—

noting that Girasole failed to allege that he engaged in protected activity by

requesting a reasonable accommodation for an individual with a disability—and

Girasole has failed to remedy the specific defect the Court addressed.34 Accordingly,

the Court DISMISSES WITH PREJUDICE Girasole’s retaliation claim.

a disability. And though Girasole says he “was aware” that her “cancer (or treatment therefor) was

expected to last 12 months or longer,” he does not provide any further detail to establish that Lawson’s

treatment created an “impairment” or that either her cancer or her compromised immune system

“substantially limit[ed] one or more major life activities” for Lawson. Id. at 15; 42 U.S.C. § 12102(2)(A);

see Fierro v. Knight Transp., No. EP-12-CV-00218-DCG, 2012 WL 4321304, at *3 (W.D. Tex. Sept. 18,

2012) (“[M]erely having cancer . . . is not enough to support an inference that [a plaintiff] has an actual

disability. . . . [The plaintiff] is required to plead facts giving rise to an inference his cancer

substantially limits one or more of his major life activities.” (cleaned up)). Finally, Girasole says he

“regarded Lawson as having a physical impairment” and cites the statutory definition of disability,

which includes “[b]eing regarded as having [] an impairment.” Doc. 31 at 16; 42 U.S.C. § 12102(1)(C).

This argument cannot save Girasole’s claim because, again, Girasole fails to specify what impairment

he regarded Lawson as having.

32 See also Gray v. WinCo Foods, LLC, No. 4:20-CV-791-SDJ-KPJ, 2022 WL 2899277, at *12

(E.D. Tex. June 6, 2022) (“Plaintiff’s alleged advocacy was for a group of individuals to which the ADA

did not apply—i.e., store employees who did not have a disability within the meaning of the ADA, but,

rather, were afraid of a potential future disability if they contracted COVID-19.”).

33 29 C.F.R. § 1630.2(o)(1)(ii). Girasole notes that the Fifth Circuit has held that requesting a

“reasonable accommodation” is a protected activity. Doc. No. 39 at 5 (citing EEOC v. Chevron Phillips

Chem. Co., LP, 570 F.3d 606 (5th Cir. 2009)). The EEOC regulations promulgated to implement the

ADA say that “the term reasonable accommodation” includes “[m]odifications or adjustments to work

environment, or to the manner or circumstances under which the position held or desired is

customarily performed, that enable an individual with a disability who is qualified to perform the

essential functions of that position.” 29 C.F.R. § 1630.2(o)(1)(ii) (emphasis added). So in the EEOC’s

view—which does not bind the Court, but which the Court shares—requesting a reasonable

accommodation is only protected activity when undertaken on behalf of someone with a disability.

Thus, this argument cannot save Girasole’s claim.

34 Doc. 30 at 6–9.

B. Age and Sex Discrimination

Next, the Court will address Girasole’s failure-to-promote claims based on age

and sex discrimination. Again, Girasole doesn’t need to plead a prima facie case of

discriminatory failure-to-promote, but he must “plead sufficient facts on all of the

ultimate elements . . . to make his case plausible.”35 For a Title VII failure-to-promote

claim, those elements are: “(1) [Girasole] is a member of a protected class; (2) he was

qualified and applied for the job; (3) [Caliber] rejected him for the job despite his

qualifications; and (4) a similarly situated applicant outside the protected class was

hired.”36 For age discrimination, the Supreme Court has held that the plaintiff bears

the burden to prove “that age was the ‘but-for’ cause of the challenged employer

decision.”37

Girasole applied for seven positions with Caliber prior to his termination, but

he was not selected for any of them. In a previous order, the Court granted Caliber’s

motion to dismiss Girasole’s first amended complaint because Girasole failed to allege

facts that could satisfy the second and fourth elements for both his discrimination

claims.38 Girasole’s second amended complaint fails to address the Court’s concerns

about the second element, specifically, whether Girasole was qualified for the jobs at

issue.39

35 Chhim, 836 F.3d at 470.

36 Id.

37 Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009).

38 Doc. 30 at 11–12.

39 As to the fourth element, Girasole alleges that Caliber filled the seven positions he applied

to with three men (all of whom were less than 40 years old) and four women. Doc. 31 at 22–24. Because

Regarding both his sex- and age-discrimination claims, Girasole maintains

that he was qualified for all seven positions based on “over 25 years of business

controls and risk experience.”40 He details his “extensive experience” at length, but

crucially, he fails to explain why that experience qualified him for the specific jobs he

sought.41 Girasole never describes the qualifications Caliber wanted for candidates

applying to any of the seven positions, and he doesn’t share his own beliefs about

what qualifications he thought those jobs required. Beyond listing the job titles,

Girasole provides no information to show what—in either his opinion or Caliber’s—

would make any candidate more or less qualified for any of the jobs. He doesn’t

attempt to explain what duties each job entailed or what qualities would lead to

success in each role. And although the job titles indicate responsibilities that might

be consistent with Girasole’s business experience, the Court will not simply assume

that the jobs called for applicants with exactly his qualifications.42 Girasole asserts

that the candidates Caliber chose instead of him lacked his qualifications, but that’s

irrelevant at this point.43 The second element for both Girasole’s discrimination

Girasole’s second amended complaint does not allege sufficient facts to satisfy the second element, the

Court need not address whether the facts Girasole alleges could satisfy the fourth element or not.

40 Id. at 24.

41 Id.

42 See id. at 22–24 (listing the job titles as “AVP Learning and Development”; AVP Business

Performance”; AVP Business Operations”; “VP Product Management”; and “AVP and VP Business

Controls”).

43 This argument is particularly irrelevant because while Girasole asserts that the candidates

Caliber promoted instead of him didn’t have his qualifications, he fails to state what qualifications

they did have. He therefore fails to address the Court’s concern that his previous complaint lacked

“allegations suggesting that he was ‘better or equally qualified’ than those individuals Caliber actually

hired for those positions.” Doc. 30 at 11 (quoting Chhim, 836 F.3d at 471).

claims requires a showing that Girasole was qualified for the positions, and since he

failed to explain what qualifications each job called for, he cannot make such a

showing. Thus, Girasole’s second amended complaint fails to state a plausible claim

for age or sex discrimination.

For these reasons, Girasole has failed to state a claim for Caliber’s failure to

promote him on the basis of either age or sex, so the Court GRANTS Caliber’s motion

as to these claims. And because the Court’s order dismissing Girasole’s first amended

complaint identified a defect as to the second element—whether Girasole was

qualified for the jobs he applied to—and Girasole has failed to remedy that defect, the

Court DISMISSES WITH PREJUDICE Girasole’s age- and sex-discrimination

claims.

IV. Conclusion

The Court GRANTS Caliber’s motion to dismiss Girasole’s second amended

complaint. Because the Court has already granted Girasole leave to amend, and

because Girasole failed to remedy the defects the Court identified, the Court

DISMISSES WITH PREJUDICE Girasole’s claims.

IT ISSO ORDERED this 21st day of August, 2023.

BRANTLEY S

UNITED STATES DISTRICT JUDGE

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