“Filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.”
How later courts described this case
- “Filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT December 31, 2024
FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION
§
RONALD AUGUSTINE PLASKETT, §
§
Plaintiff, §
v. § CIVIL ACTION NO. 24-1433
§
DEER PARK REFINING L.P., §
§
Defendant. §
§
§
MEMORANDUM AND OPINION
Ronald Plaskett sues his former employer, Deer Park Refining L.P., alleging racial and
religious discrimination and retaliation. Plaskett, an African-American man who practices
Rastafarianism, has worked at Deer Park Refining since 2016. He continues to be employed there.
Plaskett alleges that he was denied training and promotional opportunities, subjected to
harassment, and treated less favorably than his colleagues because of his race and religion. He
brings claims under the Texas Labor Code Chapter 21 (“TCHRA”) and Title VII for religious
discrimination, race discrimination, retaliation and hostile work environment.
Deer Park has moved to dismiss Plaskett’s claims under Federal Rule of Civil Procedure
12(b)(6). (Docket Entry No. 30). Deer Park asserts that Plaskett’s claims under both the TCHRA
and Title VII are time-barred. (Id.). Deer Park also argues that Plaskett’s allegations fail to state
a claim upon which relief can be granted. (Id.).
Based on the pleadings, the motion, and the applicable law, the court grants the motion to
dismiss Mr. Plaskett’s claims. The reasons for this ruling are explained below.
I. Background
From 2016 to February 2023, a Caucasian man named Obie Harris supervised Plaskett’s
work at Deer Park. (Id. at 4). During this time, Plaskett alleges that Harris “persistently thwarted
his professional advancement, exposing him to discrimination, harassment and public indignity.”
(Id. at 5). Plaskett alleges that on November 10, 2016, he “filed his first original EEOC complaint.”
(Id.). He asserts that the response from Deer Park to his complaint was “punitive”: Plaskett was
reassigned from a role in the Distilling Department to the Chemical Department, “without
justification.” (Id.). He alleges that a manager at Deer Park, Andy Castiglione, told him that
“[s]ince you filed the EEOC charge, I’m going to move you to the Chemical Dep[artment] because
they need a good operator.” (Id. at 6). He also alleges that he was not given an additional $1.00
per hour pay increase despite having the qualifications for this increase. (Id. at 5). Because
Plaskett’s reassignment violated the terms of a collective bargaining agreement to which Deer Park
was subject, he alleges that he filed “a grievance.” (Id. at 6).
Plaskett asserts that in 2019, he attempted to return to the Distilling Department, but his
efforts were “thwarted” by Harris, Castiglione, and other management-level employees in the
Chemicals Department. (Id.). Plaskett asserts that “this again was another form of retaliation.”
(Id.). A Caucasian individual was instead assigned to the role that Plaskett sought. (Id.). Plaskett
asserts that this individual had less experience than he did. (Id.).
Plaskett also alleges that between December 2018 and January 2019, he “completed a
series of rigorous job trainings and assignments with notable efficiency.” (Id. at 7). He approached
management, including Harris, to request a pay increase, without success. (Id.). Plaskett alleges
that a colleague “from the same hiring cohort and of Caucasian descent” who “does not identify
as Rastafarian” was given the pay increase after she completed similar trainings. (Id.). Plaskett
also alleges that “other employees in the same position” who were also supervised by Harris and
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belong to “White, Hispanic and Arab collectives” received pay increases. (Id.). Plaskett filed
another grievance in 2020 after Deer Park refused to increase his pay. (Id.).
Plaskett alleges that since 2019, he has been “persistently overlooked” for training
opportunities. (Id.). He alleges that coworkers with less seniority and “lack of success” in
completing the training he sought to obtain were “preferentially given chances that were withheld
from him.” (Id. at 7-8). Plaskett also alleges that he was not promoted “despite his qualifications
and training endeavors.” (Id. at 8). He alleges that Harris instead chose to promote other
colleagues, “ranging in ethnic backgrounds,” who did not identify as Rastafarians. (Id.).
Plaskett also alleges an incident on July 18, 2022 when Harris publicly disparaged him
during a staff assembly. (Id. at 8). During the assembly, Harris used profanity and mocked
Plaskett for complaining about the cleanliness of a control room at the refinery. (Id.). Plaskett’s
and Harris’s manager, Steve Jones, was allegedly present when this occurred. (Id.). Plaskett
alleges that Jones failed to take “immediate corrective action” related to this incident. (Id. at 8-9).
Plaskett alleges that he filed a grievance with Deer Park because of Harris’s disparagement. (Id.
at 9).
Plaskett also alleges that Harris sent an email to Plaskett commending another colleague
on his promotion. (Id. at 9). Plaskett responded to this email. (Id.). Deer Park HR investigated
Harris’s email and Plaskett’s response. (Id.). During the investigation, Plaskett “courageously
disclosed the prolonged harassment, discrimination and religious prejudice” that he had been
subject to by Harris. (Id.). He also complained to HR about “banter and memes that colleagues
circulated through his work area” targeted at him. (Id.). In February 2023, Plaskett was informed
that Harris had been removed from Plaskett’s department and transferred to another department at
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Deer Park. (Id.). Plaskett alleges that since Harris was transferred, he has “observed a significant
improvement in the workplace environment.” (Id. at 10).
Plaskett alleges that after Harris’s departure, he experienced an additional discriminatory
act. (Id.). Plaskett alleges that he was “passed over for an assistant role pertinent to the impending
Turnaround in his department.” (Id.). This assignment, which he refers to as the “Temporary
Turnaround assignment,” came with a 10% increase in pay. (Id. at 10-11). Plaskett alleges that he
was qualified for the Temporary Turnaround Assignment, but a colleague of Plaskett’s, who is
Caucasian and not Rastafarian, received the assignment. (Id.). Plaskett asserts that Harris, who
has a position “within the Turnaround Planning Department” may have ensured that Plaskett was
not given the role he sought. (Id. at 11).
When Plaskett filed his First Amended Complaint, he asserted that Harris had been
reassigned to the Distilling Department. (Id.). As a result, Plaskett asserts that he will once again
be “positioned to report to Mr. Harris and follow his directives.” (Id.).
On January 5, 2024, Plaskett filed a Charge of Discrimination with the EEOC and the Texas
Workforce Commission against Deer Park, alleging racial and religious discrimination, hostile
work environment, and retaliation. (Id. ¶ 11). The EEOC issued a right to sue letter on January
30, 2024. (Id. ¶ 12).
II. The Legal Standard
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be
granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a),
which requires “a short and plain statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2). “[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, 678
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(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8 “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
To withstand a Rule 12(b)(6) motion, a complaint must include “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Lincoln
v. Turner, 874 F.3d 833, 839 (5th Cir. 2017) (quoting Twombly, 550 U.S. at 555). “Nor does a
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal,
556 U.S. at 678 (alteration in original) (quoting Twombly, 550 U.S. at 557). “[W]hen the
allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic
deficiency should be exposed at the point of minimum expenditure of time and money by the
parties and the court.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Twombly,
550 U.S. at 558). “[A] motion to dismiss for failure to comply with Title VII's statutory filing
period, like other statutes of limitations defenses, is properly decided under Fed. R. Civ. P.
12(b)(6).” Boone v. Union Carbide Corp., 205 F. Supp.2d 689 (S.D. Tex. 2002).
III. Analysis
Plaskett brings claims under both Title VII and the TCHRA. “The Supreme Court of Texas
has ‘consistently held’ that cases interpreting Title VII should guide courts’ interpretation of the
TCHRA.” Sanders v. Regions Bank, 2024 WL 2159961, at *4 (S.D. Tex. May 14, 2024). The
court thus analyzes Plaskett’s claims under both Title VII and the TCHRA together.
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“To bring a suit under Title VII … a complainant must file a charge of discrimination with
the EEOC to exhaust his administrative remedies.” Melgar v. T.B. Butler Publ'g Co., Inc., 931
F.3d 375, 378 (5th Cir. 2019). “In Texas, a person claiming unlawful discrimination or retaliation
must file a charge of discrimination with the EEOC within 300 days ‘after the alleged unlawful
employment practice occurred.’” Burgess v. Texas Children's Hosp., 2018 WL 6266906, at *4
(S.D. Tex. Nov. 30, 2018) (quoting EEOC v. WC&M Enters., Inc., 496 F.3d 393, 398 (5th Cir.
2007)). Claims under the TCHRA must be brought within 180 days after the alleged unlawful
employment practice occurred, so any claims that are time-barred under Title VII’s statute of
limitations are also time-barred under the TCHRA. See Tex. Lab. Code Ann. § 21.202(a).
A discrimination claim not brought within the filing deadline is time-barred. Mack v. John
L. Wortham & Son, L.P., 541 F. App'x 348, 355 (5th Cir. 2013) (per curiam). Deer Park argues
that any of Plaskett’s allegations of racial or religious discrimination occurring between 2016 and
2022 are time-barred. (Docket Entry No. 30 at 7). Plaskett filed his charge of discrimination with
the EEOC on January 5, 2024, so Deer Park asserts that any alleged acts occurring on or before
March 23, 2023 fall outside of the 300-day window prescribed by Title VII. (Id.). Deer Park
asserts that this includes the following allegations, all of which Plaskett allege occurred before
March 5, 2023: (1) the grievance that Plaskett filed in 2016; (2) his reassignment to the Chemical
Department; (3) Harris “thwarting” Plaskett’s attempted return to the Distilling Department in
2019; (4) the denial of Plaskett’s requested pay increase in 2019 and the grievance that Plaskett
filed because of it in 2020; (5) any alleged failures to promote Plaskett between 2019 and May 5,
2023; (6) the incident where Harris disparaged Plaskett at a team meeting, and the grievance that
Plaskett filed after this incident; (7) the incident where Harris sent Plaskett an email about another
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colleague’s promotion; and (8) the allegations of offensive “banter and memes” that were
circulated before March 5, 2023.
Plaskett asserts that these allegations of discrimination are not time-barred because “the
Fifth Circuit has found that the continuing violation doctrine may apply to all Title VII claims.”
(Docket Entry No. 37 at 3). Plaskett cites Messer v. Meno, 130 F.3d 130 (5th Cir. 1997). But
more recent Fifth Circuit precedent clearly establishes that “[c]laims alleging discrete acts are not
subject to the continuing violation doctrine; hostile workplace claims are.” Heath v. Board of
Supervisors for the Southern University and Agricultural and Mechanical College, 850 F.3d 731,
737 (5th Cir. 2017). “A discrete act consists of an unlawful practice that ‘occurred’ on the day it
‘happened,’ which includes, for example, ‘termination, failure to promote, denial of transfer, or
refusal to hire.’” Mickens v. Moran Foods, 2017 WL 4269680, at *2 (E.D. La. Sept. 26, 2017)
(citing reference omitted).
Plaskett’s complaint alleges a number of discrete acts: failures to promote, a transfer to
another department, and a failure to increase his pay. “[T]he continuing violation doctrine cannot
be used to connect acts of discrete discrimination or retaliation, thereby extending the deadline in
which to file a complaint based on that conduct because a ‘discrete retaliatory or discriminatory
act occurred on the day that it ‘happened.’” Lucenio v. Houston Indep. Sch. Dist., 2022 WL
658838, at *11 (S.D. Tex. Feb. 16, 2022) (quoting Frank v. Xerox Corp., 347 F.3d 130, 136 (5th
Cir. 2003)). The continuing violation doctrine does not save Plaskett’s allegations from before
March 3, 2023, because he alleges discrete discriminatory acts.
Even assuming that Plaskett alleges a series of related violations, and not discrete
discriminatory acts, he fails to state a claim for a hostile work environment. To state a hostile-
work-environment claim, a plaintiff must plead facts that could show:
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(1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3)
the harassment complained of was based on [membership in a protected group]; (4) the
harassment complained of affected a term, condition, or privilege of employment; and (5)
the employer knew or should have known of the harassment in question and failed to take
prompt remedial action.
Daywalker v. Univ. of Texas Med. Branch at Galveston, 641 F. Supp. 3d 362 (S.D. Tex. 2022)
(alterations adopted) (citing Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009)). The
harassment must be “sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment,” and it cannot be “measured in
isolation.” Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (citations omitted). “A hostile
work environment exists when the workplace is ‘permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's
employment.’” Johnson v. Halstead, 916 F.3d 410 (5th Cir. 2019) (citing Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)).
In addition to the allegations that Deer Park failed to promote Plaskett or raise his pay, or
that Plaskett was transferred to another department, Plaskett has alleged that he was “muted” in
Zoom meetings, subject to “memes and banter” that he found offensive, and publicly disparaged
by Harris at a team meeting. But Plaskett does not allege that these incidents of “harassment” had
either any overtly racial or religious character. Without more, Plaskett’s allegations amount only
to “discourtesy,” “rudeness,” “offhand comments,” and “isolated incidents,” all of which the Fifth
Circuit has found do not amount to a hostile work environment. Indest v. Freeman Decorating,
Inc., 164 F.3d 258, 264 (5th Cir. 1999) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 118
S. Ct. 2275, 141 L. Ed. 2d 662 (1998)).
Equitable tolling may serve to extend the filing deadline when a plaintiff alleging
discrimination under Title VII fails to file their charge within the 300-day window. See Zipes v.
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Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (“Filing a timely charge of discrimination
with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that,
like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.”). A plaintiff bears
the burden to justify equitable tolling, which courts apply “sparingly.” Granger v. Aaron’s, Inc.
636 F.3d 708, 712 (5th Cir. 2011) (quoting National R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113 (2002)). Under Fifth Circuit precedent, three grounds may support equitable tolling: (1)
the pendency of a suit between the same parties in the wrong forum; (2) the plaintiff’s unawareness
of the facts giving rise to the claim because the defendant intentionally concealed them; and (3)
the EEOC’s misleading the plaintiff about the nature of the rights. Granger, 636 F.3d at 712.
Plaskett fails to allege facts that would allow the court to infer that any of these three grounds
apply.
Deer Park asserts, and the court agrees, that the only allegation that Plaskett alleges which
is not clearly barred by the statute of limitations is Deer Park’s failure to promote or otherwise
assign the Temporary Turnaround position to Plaskett. (Docket Entry No. 30 at 18). Plaskett
alleges that this occurred after Harris’s reassignment to another group in February 2023, but he
does not allege whether this occurred before or after March 3, 2023. Plaskett asserts that he was
eligible and qualified for the position, but that a less-qualified Caucasian individual who does not
practice Rastafarianism, John Brooks Pearson, was selected instead. (Docket Entry No. 13 at 11-
12). Plaskett claims that Deer Park did not follow its normal hiring procedures in hiring Pearson
and failed to allow Plaskett the opportunity to fully assert his qualifications for the Temporary
Turnaround assignment. (Id.). Plaskett also alleges that Harris may have been involved in the
failure to promote him. (Id.).
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The court analyzes this as a “disparate treatment” claim for discrimination. “When an
individual infers discrimination from an employer's failure to promote him, courts apply a
modified version of the burden-shifting analysis articulated by the Supreme Court in McDonnell
Douglas.” Brooks v. Firestone Polymers, LLC, 70 F. Supp. 3d 816, 851 (E.D. Tex. 2014)
(alterations adopted) (citing Scales v. Slater, 181 F.3d 703, 709 (5th Cir. 1999). For a prima facie
case for failure to promote using circumstantial evidence, a plaintiff must plausibly allege that “(1)
he was not promoted, (2) he was qualified for the position he sought, (3) he fell within a protected
class at the time of the failure to promote, and (4) the defendant either gave the promotion to
someone outside of that protected class or otherwise failed to promote the plaintiff because of his
race [or religion].” Autry v. Fort Bend Indep. Sch. Dist., 704 F.3d 344, 346-47 (5th Cir. 2013).
Plaskett has stated a prima facie case for a failure to promote. He alleges that he was not promoted
to the Temporary Turnaround position, which came with higher pay, that he was qualified for the
position, that he was a member of two protected classes at the time of the position, and that
someone outside of his protected classes received the promotion.
To the extent that Plaskett relies on the failure to promote him to the Temporary
Turnaround position for a claim of retaliation, he must plausibly allege the following: (1) he
engaged in a protected activity; (2) he was subjected to an adverse employment action; and (3)
there is a causal link between the protected activity and the adverse employment action. Long v.
Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996). As stated, Plaskett’s claim fails on the first
element. Deer Park asserts, and the court agrees, that Plaskett alleges a series of protected activities
occurring from 2016 to 2022, and then again in 2024. (Docket Entry No. 30 at 21). If Plaskett
alleges that he was denied the Temporary Turnaround assignment between February and March
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2023, the protected activities in 2022 or 2024 are either too early or too late to give rise to a claim
for retaliation.
Plaskett’s claim for religiously or racially motivated disparate treatment for failing to
promote or otherwise assign him to the Temporary Turnaround position is the only plausible claim
he asserts. Because he fails to allege a specific date on which Deer Park failed to promote him, he
is granted leave to amend only as to those allegations relating to the Temporary Turnaround
position. He must amend his complaint to specifically allege the date on which this failure to
promote occurred, no later than February 1, 2025, or else this claim will be dismissed with
prejudice.
IV. Conclusion
Deer Park’s motion to dismiss is granted. (Docket Entry No. 30). All of Plaskett’s claims
except his claim alleging disparate treatment for the failure to promote him to the Temporary
Turnaround position are dismissed, with prejudice, as amendment would be futile. Plaskett must
amend his disparate treatment for the failure to promote him to the Temporary Turnaround position
to clearly allege a date when this occurred, no later than February 1, 2025.
SIGNED on December 31, 2024, at Houston, Texas.
LV, Con
Lee H. Rosenthal
United States District Judge
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