Shelton v. Parkland Health

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GIOVONNI SHELTON, §

§

Plaintiff, §

§

v. § Civil Action No. 3:24-CV-2190-L-BW

§

PARKLAND HEALTH, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

On February 18, 2025, the Findings, Conclusions and Recommendation of the United

States Magistrate Judge (“Report”) (Doc. 22) was entered, recommending that the court deny

Defendant Parkland Health’s (“Defendant” or “Parkland”) Motion for Partial Dismissal of

Plaintiff’s First Amended Complaint (“Motion” or “Motion for Partial Dismissal) (Doc. 11)

pursuant to Federal Rule of Civil Procedure 12(b)(6). Parkland filed Objections (“Objections”)

(Doc. 23) to the Report on March 3, 2025. For the reasons herein explained, the court accepts the

Report (Doc. 22) as modified and supplemented by this Memorandum Opinion and Order;

overrules Defendant’s Objections (Doc. 23); and denies Defendant’s Motion for Partial Dismissal

(Doc. 11). The court also denies as moot the prior Motion for Partial Dismissal (Doc. 5) filed by

Defendant, which was mooted when Plaintiff subsequently filed her First Amended Complaint

(“Amended Complaint”).

I. Background

Giovonni Shelton (“Plaintiff” or “Ms. Shelton”) filed this lawsuit against Parkland on

August 26, 2024. On October 25, 2024, Parkland moved to dismiss certain claims in Plaintiff’s

Complaint pursuant to Rule 12(b)(6). See Doc. 5. As indicated, this motion was mooted when

Plaintiff amended her pleadings as a matter of course on November 15, 2024, within the time

permitted by Federal Rule of Civil Procedure 15. See Doc. 10. The magistrate judge apparently

recognized as much because his Report only addresses Parkland’s subsequent Motion for Partial

Dismissal, which focuses solely on the claims and allegations in Plaintiff’s Amended Complaint.

To avoid confusion, the court denies as moot Defendant’s prior Motion for Partial dismissal (Doc.

5) and devotes the remainder of this Memorandum Opinion and Order to Defendant’s Motion for

Partial Dismissal (Doc. 11) and request to dismiss Plaintiff’s claims as alleged in her Amended

Complaint.

In her Amended Complaint (Doc. 10), Ms. Shelton alleges that she began working for

Parkland as a Senior Payroll Analyst in March 2023. She asserts claims against Parkland under:

(1) Title VII of the Civil Rights Act of 1964 (“Title VII”) for hostile work environment, retaliation,

and gender (pregnancy) discrimination based on disparate treatment,; (2) the Pregnancy

Discrimination Act (“PDA”) for pregnancy discrimination and retaliation; (3) the Americans with

Disabilities Act (“ADA”) for failure to accommodate and retaliation; and (4) the Texas

Commission on Human Rights Act (“TCHRA”) for gender/pregnancy discrimination and

retaliation.

These claims stem from Parkland’s alleged treatment of Ms. Shelton after she notified her

direct supervisor Ms. Christi Espino (“Ms. Espino”) that she was pregnant, and she requested to

work from home for three to four weeks, in accordance with her doctor’s recommendation, after

she was diagnosed with a pregnancy-related hypertension disorder that caused her blood pressure

to rise and was further complicated by fetal growth restrictions. Plaintiff alleges that this request

for accommodation was granted by Parkland’s third-party Administrator Sedgwick; however, Ms.

Espino overruled the Administrator and denied the accommodation. In addition, Plaintiff alleges

that, after making the request for accommodation, Ms. Espino changed and significantly increased

her workload and “issued her a write-up” in her 90-day performance review for failure to meet

expectations.

Plaintiff alleges that she expressed concerns about these actions to Parkland’s vice

president, but no corrective action was taken at that time. According to Plaintiff, Parkland began

an investigation of her complaints while she was on leave in October 2023, but no action resulted

from the investigation. In addition, she alleges that, during this leave of absence, she gave birth to

a still born child, and she attributes losing her child to the stress of her supervisor’s denials of her

request for accommodation and what she refers to as a hostile work environment. Ms. Shelton

alleges that, while on leave, Parkland also retaliated against her by requiring her to undergo a

mental health evaluation as a condition of her returning to work, which condition to her knowledge

had never been previously imposed upon any male employees who had grieved the loss of a child.

Ms. Shelton alleges that she detailed these concerns in a letter to Parkland’s human resources

department while on leave.

According to Ms. Shelton’s pleadings, she ultimately agreed to undergo an evaluation, and

the doctor who evaluated her diagnosed her with post-traumatic stress disorder and attributed the

condition to her work environment under Ms. Espino. As a result, her return-to-work

documentation included the restriction that she could no longer work under Ms. Espino. Ms.

Shelton further alleges that, upon returning to work, she was advised that she would need to secure

a different position within Parkland, but Parkland refused to reassign her to a different position

and instead required her to apply for open positions. Ms. Shelton alleges that she applied for several

positions to no avail, and, after thirty days, Parkland removed her from its system without notice.

Then, in March 2024, Parkland allegedly sent Plaintiff a letter confirming that her employment

had been terminated. Plaintiff alleges that before being fired, she filed her initial complaint or

Charge of Discrimination No. 450-2024-02629 with the Equal Employment Opportunity

Commission (“EEOC”) within 300 days of the last discriminatory act alleged. She alleges in her

Amended Complaint that her termination and prior actions by Parkland and her supervisor

constituted retaliation. Ms. Shelton acknowledges that she did not file another complaint or

Charge of Discrimination after her employment was terminated to include a retaliation claim based

on her termination.

Defendant asserts in its Motion and supporting brief that is seeking dismissal under Rule

12(b)(6) of Plaintiff’s retaliation claims under Title VII, the PDA, the TCHRA, and the ADA; and

her failure to accommodate claim under the ADA on the ground that she did not include these

claims in her dual-filed Charge of Discrimination with the EEOC and the Texas Workforce

Commission Civil Rights Division, which it refers to collectively as “the Charge.”1 Defendant’s

brief, however, also extends to Plaintiff’s discrimination claim. See Doc. 12 at 4 (referring to

“disability discrimination”). Parkland asserts that these claims should be dismissed because Ms.

Shelton failed to exhaust her administrative remedies. Parkland further asserts that, in ruling on its

Motion for Partial Dismissal and determining whether Plaintiff exhausted her administrative

remedies, the court can and should consider the Charge.

According to Parkland, the Charge filed by Plaintiff on December 19, 2023, demonstrates

that Plaintiff failed to exhaust certain claims in her Amended Complaint, and it is entitled to

dismissal of these claims because:

[i]n the Charge, including in the narrative portion, Shelton did not allege

that (1) Parkland retaliated against her by subjecting her to a hostile work

environment, (2) Parkland retaliated against her by terminating her employment,

(3) Parkland engaged in disability discrimination, (4) she has a disability, or (5)

1 Specifically, Parkland alleges that it “moves to dismiss Plaintiff’s claims for retaliation under Title VII of the Civil

Rights Act of 1964 (“Title VII”), the Pregnancy Discrimination Act (“PDA”), and the Texas Commission on Human

Rights Act (“TCHRA”) and for failure to accommodate and retaliation under the Americans with Disabilities Act of

1990 (“ADA”).” Doc. 11 at 1; Doc. 12 at 1.

Parkland violated the ADA in any way. See Exhibit 1. (APP. 001-004) Yet in her

First Amended Complaint, Shelton alleges that Parkland retaliated against her by

subjecting her to “a sudden increase in her workload with more challenging

assignments, a negative performance review, and a formal write-up,” in violation

of Title VII, the PDA, and the TCHRA. See Doc. 10, First Amended Complaint ¶¶

43, 48, 60. Shelton also alleges retaliatory termination under Title VII, the PDA,

and the TCHRA, as well as failure to accommodate and retaliation under the ADA.

Id. at ¶¶ 44, 52-57, 60-62 Because Shelton failed to exhaust administrative remedies

with respect to these claims, she fails to state claims upon which relief may be

granted, and the Court should dismiss these claims.

Doc. 12 at 4 (citations to cases omitted).

Ms. Shelton takes issue with Defendant’s request to consider the Charge submitted in

support of its Motion for Partial Dismissal. She acknowledges that, under Rule 12(b)(6), courts

may consider matters outside the pleadings if the document is referred to in a plaintiff’s complaint

and central to a plaintiff’s claim. She also acknowledges that the Charge is referenced in her

Amended Complaint, but she contends that Defendant’s Motion for Partial Dismissal is actually a

motion for summary judgment under Federal Rule of Civil Procedure 56 because the Motion

attaches and requests the court to consider her original Charge. She, therefore, appears to dispute

whether the Charge is central to the claims for which Parkland seeks dismissal on exhaustion

grounds. Ms. Shelton does not dispute the accuracy of the information in the Charge. She instead

asserts that, if the court intends to consider matters outside the pleadings—namely, her originally

filed Charge—in ruling on Defendant’s Motion, it should also consider the documents attached to

her response out of fairness, presumably for context purposes.

Plaintiff nevertheless argues that the factual allegations in the Charge were sufficient to put

Parkland on notice regarding the nature of her pre-Charge claims, especially when viewed in light

of the termination letter she received. Additionally, to the extent Defendant seeks dismissal of her

post-Charge retaliation claim pertaining to Parkland’s termination of her employment after she

filed the Charge, Ms. Shelton contends that the exception to exhaustion in Gupta v. East Texas

State University, 654 F.2d 411, 414 (5th Cir. 1981), applies and relieved her from any exhaustion

requirement as to this retaliation claim.

In its reply, Parkland does not address Plaintiff’s argument regarding the applicability of

the Gupta exception to her claims for post-Charge retaliation. Instead, it continues to argue that

the Charge is insufficient to exhaust her retaliatory hostile work environment claims. Parkland

also continues to contend that Ms. Shelton’s failure to check the “Disability” box on the Charge

form precludes her from pursuing an ADA claim because her factual allegations regarding a

“hypertension disorder of pregnancy” were not enough to put it or any investigator on notice of a

disability discrimination claim.

Finally, Parkland disagrees with Plaintiff’s contention that consideration of the Charge in

this case requires the court to convert its Motion for Partial Dismissal under Rule 12(b)(6) to one

for summary judgment under Rule 56. In this regard, Defendant maintains its position that the

court can and should consider the Charge in ruling on its Motion under Rule 12(b)(6) because, in

its view, the Charge is referenced in Plaintiff’s Amended Complaint and central to her claims.

Defendant’s Motion became ripe when it filed its reply on December 30, 2024. Thereafter, the

magistrate judge issued his Report on February 18, 2025.

II. Report and Recommendation Regarding Defendant’s Motion

In his Report, the magistrate judge first explains that a party relying on an affirmative

defense such as failure to exhaust administrative remedies is not entitled to dismissal of a plaintiff’s

claims under Rule 12(b)(6), unless a plaintiff has pleaded himself or herself out of court by

admitting to all of the elements of the affirmative defense. The magistrate judge then goes on to

conclude that it would not be appropriate for the court to consider the Charge in ruling on

Parkland’s Motion pursuant to Rule 12(b)(6) and request for dismissal of certain claims based on

its affirmative defense of failure to exhaust administrative remedies.

In this regard, the magistrate judge reasons as follows:

To obtain dismissal based on its affirmative defense, Parkland must show

that Shelton admits all the elements required to prove its defense. As noted, Shelton

alleges that she has exhausted all administrative remedies, and she certainly does

not admit facts that establish a failure to exhaust claims for retaliation and disability

discrimination. Parkland’s motion, rather, is predicated on its introduction and use

of Shelton’s EEOC charge, urging the Court to consider the charge because it is

referenced in Shelton’s complaint. (Br. at 4.) But Parkland overreads instructive

authority in believing the Court can consider a document outside of the complaint

so long as it mentioned in the complaint.

At the Rule 12(b)(6) stage, the Court may consider documents attached to a

defendant’s motion to dismiss when those documents are “referred to in the

complaint and are central to the plaintiff’s claims.” Walker v. Beaumont Indep. Sch.

Dist., 938 F.3d 724, 735 (5th Cir. 2019). By attaching these documents, “the

defendant merely assists the plaintiff in establishing the basis of the suit, and the

court in making the elementary determination of whether a claim has been stated.”

Id. (quoting Collins [v. v. Morgan Stanley Dean Witter,] 224 F.3d [496, 499 (5th

Cir. 2000)]. “But documents used to support a defendant’s affirmative defense

appear not to fall within” the rule permitting a court to consider documents outside

the complaint. Skipper v. FedEx, No. 3:23-CV-212-E-BN, 2023 WL 9065085, at

*4 (N.D. Tex. Dec. 8, 2023) (internal quotation marks omitted), accepted, 2024 WL

41555 (N.D. Tex. Jan. 3, 2024); see also Anderson v. Octapharma Plasma, Inc.,

No. 3:19-CV-2311-D, 2020 WL 7245075, at *7 (N.D. Tex. Dec. 9, 2020) (declining

to consider consent forms that were not “central” to negligence claims “because

they are not necessary to establish any of the essential elements of the claim”)

(internal quotation marks omitted)). The EEOC charge is not essential to Shelton’s

claims, as it is not necessary to establish any element that she must prove. Rather,

Parkland relies on the charge here “solely as a defense” to her claims. See Anderson,

2020 WL 7245075, at *7. Accordingly, the charge should not be considered to

assess whether Shelton has stated a claim for which relief may be granted. See id.

Doc. 22 at 6-7. In addition, the magistrate judge notes as follows:

Parkland’s argument for considering the charge cites a Fifth Circuit case

that illustrates the general principle that courts may consider outside evidence

referenced and essential to plaintiffs’ claims, but that case does not address

defendants’ use of outside evidence to establish an affirmative defense. (Br. at 4.)

Parkland also cites a district court opinion using outside material as Parkland

requests, but the undersigned declines to follow it for several reasons, including

that the opinion does not address the principle raised and applied here.

Doc. 22 at 7 n.1. The latter reference to a district court opinion appears to refer to Defendant’s

citation to and reliance on Issa v. Boeing Comm. Aircrafts Co., No. SA-23-CV-01029, 2024 WL

3153388 (W.D. Tex. May 20, 2024). See Doc. 12 at 3.

Applying this reasoning to Ms. Shelton’s pleadings, the magistrate determined that she

“has not pleaded herself out of court by admitting that she failed to exhaust claims for retaliation

and disability discrimination.” Id. at 7. The magistrate judge, therefore, recommends that the

court not consider the Charge and deny Defendant’s Motion for Partial Dismissal under Rule

12(b)(6). For various reasons, including Plaintiff’s failure to follow applicable Local Civil Rules

and the absence of a request by Defendant to covert its Motion to one for summary judgment, the

magistrate judge also declined to consider the documents attached to Ms. Shelton’s response or

convert Defendant’s request for dismissal under Rule 12(b)(6) to one for summary judgment under

Rule 56.

III. Discussion

As noted, Parkland objected to the magistrate judge’s Report. In its Objections, Parkland

first asserts that it is clearly appropriate for courts to take judicial notice of matters of public record,

including a charge of discrimination in ruling on a Rule 12(b)(6) motion to dismiss for failure to

exhaust administrative remedies. Parkland, therefore, asserts that the court should take judicial

notice of Ms. Shelton’s Charge and grant its Motion on this basis. In addition, Parkland reasserts

its argument that the Charge referenced in Ms. Shelton’s pleadings and attached to its Motion is

central to the claims asserted by Ms. Shelton and should be considered in ruling on and granting

its Motion for Partial dismissal based on its exhaustion defense.

A. Whether Judicial Notice of the Charge is Appropriate

Parkland correctly notes that a district court, in ruling on objections to a magistrate judge’s

findings, conclusions, and recommendations, may accept, reject, or modify in whole or in part

such findings and conclusions, and a district also has authority to receive and consider further

evidence or recommit the matter to the magistrate judge with instructions. Doc. 23 (citing 28

U.S.C. § 636(b); and Fed. R. Civ. P. 72(b)(3)). Legal arguments raised for the first time in

objections to a magistrate judge’s report, however, are waived and not properly before the court.

Freeman v. City of Bexar, 142 F.3d 848, 851 (5th Cir. 1998) (“[A] party who objects to the

magistrate judge’s report waives legal arguments not made in the first instance before the

magistrate judge.”)). Parkland’s judicial notice argument is a legal argument. As Parkland did

not previously argue in its Motion, brief, or reply that the court could or should take judicial notice

of the Charge in ruling on its Motion and exhaustion defense, it waived this legal argument by not

presenting it in the first instance to the magistrate judge for consideration, and the undersigned

declines to consider it.

B. Whether the Charge is Central to Plaintiff’s Claims

Parkland next cites a handful of district cases out of the Western and Northern Districts of

Texas to support its objection and argument that district courts in the Fifth Circuit have found

charges of discrimination to be central to a plaintiff’s claims for purposes of ruling on a Rule

12(b)(6) motion based on administrative exhaustion. Doc. 23 at 3-4 (citing Heerwagen v. Enlink

Midstream, LLC, No. 3:19-CV-01187-E, 2020 WL 836873, at *3 n.4 (N.D. Tex. Feb. 20, 2020);

Winn v. Cleburne ISD, No. 3:18-CV-02949-E, 2020 WL 5291941, at *4 n.2 (N.D. Tex. Sept. 3,

2020); Millan v. Bexar Cnty., Tex., No. SA-21-CV-0659, 2022 WL 62541, at *4 (W.D. Tex. Jan.

5, 2022); Issa, 2024 WL 3153388 at *4-5; and West v. R&K Enter., Solutions, No. 3:23-CV-1371-

G-BN, 2024 WL 3891533, at *5 (N.D. Tex. July 19, 2024), accepted, 2024 WL 3891838 (N.D.

Tex. Aug. 21, 2024).

In ruling on a Rule 12(b)(6) motion, all well-pleaded facts are assumed true and must be

viewed in the light most favorable to the plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d

191, 205 (5th Cir. 2007). The court’s review is limited to the plaintiff’s pleadings, which consist

of the complaint, any documents attached to the complaint, and any documents attached to the

motion to dismiss that are central to the plaintiff’s claim and referenced in the complaint. Collins,

224 F.3d at 498-99.

Here, Ms. Shelton’s Amended Complaint specifically references by name and number the

Charge she filed with the EEOC, and Parkland attached a copy of the Charge to its Motion for

Partial Dismissal to support its exhaustion argument. Thus, the only remaining issue is whether

the Charge is central to the claims for which Parkland seeks dismissal. Each of the cases relied on

by Parkland involved a Rule 12(b)(6) motion, an EEOC charge of discrimination, and an

exhaustion defense, and all of the cases reference the general rule regarding consideration of

documents attached to a motion to dismiss that are central to the plaintiff’s claim and referenced

in the complaint. Other than citing the general rule, however, none of the cases explains why an

EEOC charge is central to the plaintiff’s claim or claims. Instead, the courts in each case, except

for Issa, simply conclude without elaborating that the charge is central to the plaintiff’s claim. The

court in Issa correctly sets forth the general rule and goes on to consider the charge, but it never

states whether it is central to the plaintiff’s claim or claims in that case. In any event, these

unpublished district court cases are not binding on the undersigned.

As the magistrate judge in West v. R&K Enterprise, Solutions recognized, the Fifth Circuit

has not articulated a test for determining when a document is central to a plaintiff’s claims. 2024

WL 3891533, at *4 (quoting Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D. Tex.

2011)). In Kaye, the district court concluded that, despite the lack of a test, cases previously

decided by the Fifth Circuit provide some guidance and suggest that:

documents are central when they are necessary to establish an element of one of the

plaintiff’s claims. Thus, when a plaintiff’s claim is based on the terms of a contract,

the documents constituting the contract are central to the plaintiff’s claim. See

Katrina Canal Breaches Litig., 495 F.3d at 205; Collins, 224 F.3d at 499. For

instance, in Collins v. Morgan Stanley Dean Witter, in which the Fifth Circuit first

approved of the exception, the court held that the district court properly considered

a contract and an investment bank’s fairness opinion of a potential merger between

two companies in order to determine whether the plaintiff stock-option holders

were third-party beneficiaries of the contract. 224 F.3d at 499; see Collins v.

Morgan Stanley Dean Witter, 60 F. Supp. 2d 614 (S.D. Tex. 1999). Likewise, in In

re Katrina Canal Breaches Litigation, the court upheld the district court’s

consideration of the insurance contracts that formed the basis of the plaintiffs’

claims. 495 F.3d at 205.

However, if a document referenced in the plaintiff’s complaint is merely

evidence of an element of the plaintiff’s claim, then the court may not incorporate

it into the complaint. See Scanlan v. Tex. A & M Univ., 343 F.3d 533, 536-37 (5th

Cir. 2003). In Scanlan v. Texas A & M University, the Fifth Circuit reversed the

district court’s decision to incorporate documents into the complaint. Id. at 537.

There, the district court relied on a special commission’s report in dismissing claims

arising out of the injury and death of several students during the Texas A & M

University bonfire disaster. Id. The Fifth Circuit held that “the report alone [was]

not central to [the plaintiffs’] claims . . . [because] [t]he plaintiffs rel[ied] on

substantial, other evidence to support their claims.” Id. at 537.

Kaye, 453 B.R. at 662.

Based on this reasoning, the court in Kaye concluded that the report relied on by the trustee

was not central to the plaintiff’s claims:

[T]he William Blair Report is not central to the Trustee’s claims because it is not

necessary to establish an element of any of his claims but is merely one piece of

evidence that [] he relies on to support his allegations. Unlike a breach of contract

case, in which the contract is itself a fact that the plaintiff must prove, the Trustee

could conceivably prove Bruno’s insolvency at trial without ever mentioning the

William Blair Report. That the Amended Complaint relies heavily on the Report

does not change this fact. The Report may be the only source of information

available to the Trustee at this stage of the proceedings, but that does not make the

Report necessary for demonstrating insolvency. For the same reasons, the affidavits

are not central to the Trustee’s claims, but only evidence cited in the complaint.

Kaye, 453 B.R. at 662-63.

The same or similar reasoning applies here. Ms. Shelton references the Charge in her

Amended Complaint, but she contends that the court should also consider other evidence in

resolving the exhaustion issue raised by Parkland. See Scanlan, 343 F.3d at 537 & n.1 (concluding

that “the report alone is not central to [the plaintiffs’] claims . . . [because] [they] rely on substantial,

other evidence to support their claims” and noting that, “[a]lthough the [] plaintiffs . . . did not

specifically object to [application of] the Collins exception, [they] presented substantial summary

judgment evidence that placed the district court on notice that they were relying on much more than

the Final Report.”).

Moreover, the court agrees with the magistrate judge that the Charge appears to be more

central to Parkland’s exhaustion defense than Ms. Shelton’s claims. See id. at 537 (“Although the

plaintiffs rely on the Final Report in their complaints, . . . it is much more central to the University

Officials’ defenses.”). While affirmative defenses such as failure to exhaust may be asserted on a

12(b)(6) motion, dismissal on that basis is generally appropriate only when the defense is evident

on the face of the complaint. EPCO Carbon Dioxide Prods., Inc. v. JP Morgan Chase Bank, 467

F.3d 466, 470 (5th Cir. 2006). Title VII requires administrative exhaustion, and Title VII plaintiffs

are required to exhaust their administrative remedies by filing a charge of discrimination with the

EEOC before filing suit in federal court. Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 337 (5th Cir.

2021). Failure to exhaust administrative remedies, however, is an affirmative defense that must be

pleaded and proved by the defendant. Davis v. Fort Bend Cnty., 893 F.3d 300, 307-08 (5th Cir.

2018) (citations omitted).

In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court extended this reasoning to claims

subject to the Prison Litigation Reform Act (“PLRA”), concluding that “failure to exhaust is an

affirmative defense under the PLRA, and that inmates are not required to specially plead or

demonstrate exhaustion in their complaints.” Id. at 216. Based on the reasoning in Jones, the Fifth

Circuit has held that, under the Employee Retirement Income Security Act, exhaustion is an

affirmative defense that need not be pled in the plaintiff’s complaint. Wilson v. Kimberly–Clark

Corp., 254 F. App’x 280, 286-87 (5th Cir. 2007) (per curiam). Other courts have concluded that

the reasoning in Jones applies in the Title VII context. See, e.g., DiPetto v. United States Postal

Serv., 383 F. App’x 102, 104 (2d Cir. 2010); Howard v. Gutierrez, 571 F. Supp. 2d 145, 152

(D.D.C. 2008); Williams v. Doyle, 494 F. Supp. 2d 1019, 1029 (W.D. Wis. 2007). Although the

Fifth Circuit in Davis v. Fort Bend County did not reference Jones, it has similarly concluded that

failure to exhaust administrative remedies under Title VII and the ADA is an affirmative defense

that must be pleaded and proved by the defendant. Davis, 893 F.3d at 307-08 (Title VII); Luebano

v. Office Depot, L.L.C., 2023 WL 4249268, at *3 (5th Cir. 2023) (citing Davis, 893 F.3d at 307,

for the conclusion that failure to exhaust administrative remedies is an affirmative defense that the

defendant must raise and reversing dismissal of ADA claim)). As the PDA is simply an expansion

and extension of Title VII, the court concludes that failure to exhaust is also an affirmative defense

that the defendant rather than the plaintiff must plead and prove. It is for this reason that the

Charge appears much more central to Parkland’s exhaustion defense than any of Plaintiff’s claims

for which exhaustion is required because exhaustion is not an element of any of Plaintiff’s claims,

and Plaintiff is not required to plead facts supporting exhaustion.

In researching the issue, though, the court did locate two cases in which the Fifth Circuit

concluded that an EEOC complaint or charge and right-to-sue letter were central to the plaintiff’s

claim(s) in ruling on Rule 12(b)(6) motions based on administrative exhaustion grounds. In Lopez

v. Kendall, the court concluded that the plaintiff’s EEOC complaint was “certainly central to [the

plaintiff’s] civil complaint, as [the] alleged discrimination is the subject of both the EEO[C]

complaint and this action.” 2023 WL 2423473, at *2 n.1 (5th Cir. Mar. 9, 2023) (per curiam). The

Fifth Circuit, nevertheless, reversed and remanded the case because the district court relied on the

EEOC complaint and an EEOC counselor’s report that were not attached to or specifically

referenced in the plaintiff’s complaint, and, even assuming that it was appropriate for the district

court to consider the EEOC complaint, the issue of whether the charge or complaint was timely

filed could not be determined from the EEOC complaint alone. Id. at *2.

In Hamilton v. Promise Healthcare, the Fifth Circuit determined, without elaborating, that

an EEOC right-to-sue letter was central to the plaintiff’s discrimination claim. 2023 WL 6635076,

at *3 (5th Cir. Oct. 12, 2023). The district court’s opinion granting the Rule 12(b)(6) motion on

exhaustion grounds, however, was vacated and the case was remanded for further proceedings

because it was not clear as a matter of law that the defendant had met its burden of proving that

the plaintiff failed to exhaust her administrative remedies prior to filing suit. See id. at *4 (“While

the EEOC documents submitted by Promise Healthcare do not prove that Hamilton submitted a

verified intake questionnaire or affidavit, these records also do not disprove Hamilton’s allegation

in her complaint that she filed a charge of discrimination.”).

Lopez and Hamilton seem to suggest that the Fifth Circuit might agree with Parkland that

the Charge in this case is central to the plaintiff’s claims even though Parkland relies on the Charge

to support its affirmative defense of failure to exhaust administrative remedies. As the opinions

in these case are unpublished and do not appear to align with the reasoning in the prior Fifth Circuit

cases herein discussed, the court determines for the reasons explained that the Charge is central to

Parkland’s exhaustion defense, but not to Plaintiff’s claims or any element of Plaintiff’s claims for

which she has the burden of pleading and proving. Additionally, as indicated, although Ms. Shelton

does not dispute the accuracy of the information in the Charge, she does contend that the court

should consider additional documents in ruling on the exhaustion issue, which further supports the

court’s determination that consideration of the Charge in ruling on Defendant’s Rule 12(b)(6)

Motion would not be appropriate. Even assuming for the sake of argument that the court can

consider the Charge without converting Defendant’s Motion to one for summary judgment, which

as noted Defendant opposes, it determines that the information in the Charge, particularly when

viewed in the light most favorable to Plaintiff and resolving all doubts in her favor, is sufficient at

this stage to establish that Plaintiff adequately exhausted her administrative remedies for the claims

at issue.

The purpose of requiring employees to exhaust their administrative remedies by filing a

charge with the EEOC before seeking relief in court is to enable the EEOC to investigate and

facilitate, when appropriate, a resolution with the plaintiff’s employer. In determining whether the

claims asserted by a plaintiff in civil litigation were exhausted before filing suit, courts construe

the plaintiff’s EEOC charge or complaint:

broadly but in terms of the administrative EEOC investigation that “can reasonably

be expected to grow out of the charge of discrimination.” [Courts] use a “fact-

intensive analysis” of the administrative charge that looks beyond the four corners

of the document to its substance. In sum, a Title VII lawsuit may include allegations

“like or related to allegation[s] contained in the [EEOC] charge and growing out of

such allegations during the pendency of the case before the Commission.”

McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008) (internal citations omitted).

Proceeding in this manner helps to reconcile “the competing policies [that] underlie judicial

interpretation of the exhaustion requirement.” Id. These policies include, on the one hand, the

requirement that “the scope of an EEOC charge should be liberally construed for litigation

purposes because Title VII ‘was designed to protect the many who are unlettered and unschooled

in the nuances of literary draftsmanship.’” Id. (citation omitted). “On the other hand, the ‘primary

purpose of Title VII is to trigger the investigatory and conciliatory procedures of the EEOC, in

[an] attempt to achieve non-judicial resolution of employment discrimination claims.’” Id. (citation

omitted). Administrative exhaustion is not a technicality or procedural “gotcha” issue, but rather a

process that affords defendants fair notice of potential claims. Id. at 272.

Title VII claims “may be based, not only upon the specific complaints made by the

employee’s initial EEOC charge, but also upon any kind of discrimination like or related to the

charge’s allegations.” Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993). Such claims

are “limited only by the scope of the EEOC investigation that could reasonably be expected to

grow out of the initial charges of discrimination.” Id. Because a plaintiff must exhaust remedies in

the same manner for ADA, PDA, and Title VII claims,2 the court determines that the reasoning in

Fine applies with equal force to claims under the ADA and PDA.3

In Ms. Shelton’s Charge in the section “Discrimination Based On,” she checked the boxes

for “Sex,” “Retaliation,” and “Pregnancy Discrimination Act of 1978.” Doc. 13. With respect to

“The Particulars,” she alleged as follows:

I began working at Parkland Health as a Senior Payroll Analyst on March

21, 2023. When I became pregnant, I let my supervisor and coworkers know by

over a Webex meeting. I went to a scheduled prenatal appointment at Parkland

Health on October 6, 2023. At this appointment, I was diagnosed with hypertension

disorder of pregnancy which was further complicated by fetal growth restriction.

My doctor requested an accommodation for me to work from home for the next

three to four weeks so that I would have an increased ability to rest which would

2 See Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (holding that a plaintiff must exhaust remedies in

the same manner for ADA and Title VII claims).

3 As the PDA “amended Title VII by explicitly including discrimination based on pregnancy and related medical

conditions within the definition of sex discrimination,” Stout v. Baxter Healthcare Corp., 282 F.3d 856, 859 (5th Cir.

2002), and PDA discrimination claims are analyzed similarly to those under Title VII, Fairchild v. All Am. Check

Cashing, Inc., 815 F.3d 959, 966 (5th Cir. 2016), the court concludes that a plaintiff asserting a PDA claim must

exhaust remedies in the same manner for claims under Title VII.

help decrease my blood pressure. I submitted this accommodation request to

Sedgwick as required by Parkland Health on October 9, 2023.

However, on the same day, October 9, 2023, my supervisor, Christi Espino,

denied my work from home accommodation because my job was not a “virtual

role.” Additionally, Espino insisted that my job had no “limiting or strenuous

aspects,” and my request for accommodation would not be approved “without just

cause.” Espino provided no other options for any other accommodation that would

be acceptable to Parkland Health but also followed my doctor’s orders. Notably,

though Espino denied my request to work from home, she had allowed other

employees [to] do so for reasons such as “family issues.” This was one of the main

reasons I thought Espino had a bias against me as she treated me differently (and

worse) than my coworkers. Moreover, this is one of the main reasons why I decided

to report a hostile work environment due to Espino’s refusal to accommodate me.

As a result, I had to use my Paid Time Off for three days to go to my subsequent

prenatal check-up appointment.

Due to the stress of my supervisor’s denial of my accommodations, her

refusal to grant me time off other than using the Paid Time Off, and having to live

in and report a hostile work environment at my job, I ultimately lost my child.

Moreover, since I complained about Espino’s denial of my reasonable request for

accommodation—per my doctor’s orders—I have experienced retaliation at

Parkland Health. Specifically, Dr. King and Dr. Stephens has since required me to

complete a mental health evaluation, with my own employer’s doctor(s), or else I

will not be able to come back to work. Notably, I have never seen a male who has

experienced the death of a child, or any other tragedy, be required to do a mental

health evaluation in order to work at Parkland Health. I have been discriminated

against due to my pregnancy in violation of the Pregnancy Discrimination Act of

1978, my gender (female) in violations of Title VII of the Civil Rights Act of 1964

and the Texas Commission on Human Rights Act (“TCHRA”) and retaliated

against because I complained about the discrimination I have been facing at

Parkland Heath.

(Doc. 13) (Ex. 1 at 3.)

Construing the Charge liberally in favor of Plaintiff, the court disagrees with Parkland’s

contention that Plaintiff did not exhaust her administrative remedies for the discrimination,

retaliation, hostile work environment, and failure to accommodate claims under Title VII, the

ADA, the PDA, and TCHRA because, according to Parkland, she did not allege in her Charge that:

“(1) Parkland retaliated against her by subjecting her to a hostile work environment, (2) Parkland

retaliated against her by terminating her employment, (3) Parkland engaged in disability

discrimination, (4) she has a disability, or (5) Parkland violated the ADA in any way.” Doc. 12 at

4. The court also disagrees with Parkland’s contention that Ms. Shelton’s failure to check the box

for disability discrimination or mention the ADA in her Charge suffices to establish its exhaustion

defense.

While Plaintiff did not use the term “disability discrimination” or check the box for

“Disability” on the EEOC form, this alone does not support a finding that she failed to exhaust her

administrative remedies for her ADA claim. See Pacheco v. Mineta, 448 F.3d 783, 792 (5th Cir.

2006) (“[W]e do not require that a Title-VII plaintiff check a certain box or recite a specific

incantation to exhaust his or her administrative remedies”); Sanchez v. Standard Brands, Inc., 431

F.2d 455, 462 (5th Cir. 1970) (“In the context of a statute like Title VII it is inconceivable that a

charging party’s rights should be cut off merely because he fails to articulate correctly the legal

conclusion emanating from his factual allegations.”). The allegations contained within the EEOC

Charge do not have to exhaustively list every factual detail or possible claim that Plaintiff may

bring against Defendant; they only have to be sufficient to put an investigator on notice of her

claims. See Manning v. Chevron Chem. Co., L.L.C., 332 F.3d 874, 879 (5th Cir. 2003) (“the crucial

element of a charge of discrimination is the factual statement contained therein”).

The PDA amended and expanded Title VII’s definition of the terms “because of sex” and

“on the basis of sex” to include “because of or on the basis of pregnancy, childbirth, or related

medical conditions’” and to require that “women affected by pregnancy, childbirth, or related

medical conditions shall be treated the same for all employment-related purposes . . . as other

persons not so affected but similar in their ability or inability to work.” Young v. United Parcel

Service, Inc., 575 U.S. 206, 226 (2015) (quoting 42 U.S.C. §2000e-(k))). “[P]regnancy alone is

not a disability under the ADA. Instead, the EEOC would look to whether there was a pregnancy-

related impairment that substantially limits a major life activity.” Johnson v. Wag Hotels, Inc.,

No. 3:24-CV-3268-BN, 2025 WL 992573, at *6 (N.D. Tex. Apr. 2, 2025) (quoting Alexander v.

Two Oaks Invs., LLC, No. 23-CV-00406-SH, 2024 WL 3747166, at *7 (N.D. Okla. Aug. 9, 2024)).

In the Charge, Ms. Shelton alleges that she was discriminated and retaliated against by

Parkland and her direct supervisor after she disclosed her pregnancy and requested the

accommodation recommended by her doctor (to work from home for three to four weeks). Plaintiff

not only alleges that her requested accommodation was denied, but she also alleges that she was

treated differently than coworkers who were allowed to work from home because of “family

issues.” Doc. 13. She further alleges that she was treated differently from male coworkers who

were not required to undergo a mental health evaluation as a condition to returning to work after

experiencing the loss of a child, and that she was retaliated against after she complained about the

discrimination she experienced at Parkland. In addition, Ms. Shelton specifically states that the

accommodation she requested was made pursuant to her doctor’s recommendation to address her

pregnancy-related hypertension disorder that caused her blood pressure to rise and was further

complicated by fetal growth restrictions. As Parkland cites no case law to show that a medical

condition or impairment such as this does not qualify as a disability, the court declines to address

this issue in any more detail and concludes that Parkland has failed to meet its burden of

establishing its affirmative defense of exhaustion with respect to any disability claim arising out

of Ms. Shelton’s pregnancy and the related health concerns identified by her doctor.4

4 Generally speaking, the analysis in Parkland’s Motion as to why it believes Plaintiff’s Charge is insufficient to

exhaust her administrative remedies with respect to the claims pleaded is not adequately briefed. Parkland argues that

the Charge is deficient because it lacks certain factual allegations, but it does not explain why, based on relevant and

binding precedent, that the allegations in the Charge are insufficient for exhaustion purposes, and it only dedicates

approximately one page of its four-page initial brief to this issue. Parkland goes into slightly more detail in its reply

brief and cites a couple of cases that arguably should have been included in its initial brief; however, the unpublished

district court cases it relies upon are not binding on the court and, in any event, do not affect the court’s determination

that the factual allegations in the Charge were sufficient to trigger an EEOC investigation into the alleged

discrimination, retaliation, hostile work environment, and failure to accommodate.

Contrary to Parkland’s assertion, Ms. Shelton does allege that Parkland and her supervisor

retaliated against her and subjected her to a hostile work environment after she notified her

supervisor she was pregnant, requested an accommodation, and complained about perceived

discrimination. These and Ms. Shelton’s other factual allegations were sufficient to trigger the

investigatory and conciliatory procedures of the EEOC with respect to the claims that she now

asserts in her Amended Complaint under Title VII, the ADA, the PDA, and TCHRA. Moreover,

although Ms. Shelton has not expressly asserted a claim under the Pregnant Workers Fairness Act

(“PWFA”), which subjects employers to liability for failure to accommodate an employee’s known

limitations, the factual allegations in her EEOC Charge are sufficient for similar reasons to

encompass such a claim despite not specifically referencing the PWFA. 5 See Sanchez, 431 F.2d

at 462; Manning, 332 F.3d at 879; and Pacheco, 448 F.3d at 792.

As Parkland’s Motion is limited to the issue of whether Plaintiff exhausted her

administrative remedies, the court expresses no opinion on whether she has stated any viable

claims for relief or whether she has alleged sufficient facts to support the claims in her Amended

Complaint. Likewise, it expresses no opinion on whether it would reach a different result if

presented with different or additional evidence at the summary judgment stage regarding

Parkland’s affirmative defense of exhaustion of administrative remedies. Instead, the court simply

concludes that, at this stage of the litigation, that it would not be appropriate to consider the Charge

5 The PWFA addresses gaps in existing legislation regarding protections for pregnant workers and adopts an

accommodation regime similar to the ADA for pregnant workers, as well as the powers, remedies, and procedures of

Title VII as enforcement measures. 42 U.S.C. § 2000gg-1(1). “[T]he term ‘known limitation’ means physical or mental

condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the

employee or employee’s representative has communicated to the employer whether or not such condition meets the

definition of disability specified in . . . the [ADA][.]” 42 U.S.C. § 2000gg(4). The term “[c]ommunicated to the

employer, with respect to a known limitation, means an employee or the employee’s representative has made the

employer aware of the limitation by communicating with a supervisor, a manager, someone who has supervisory

authority for the employee or who regularly directs the employee’s tasks.” 29 C.F.R. § 1636.3(d).

in ruling on Defendant’s Motion for Partial Dismissal under Rule 12(b)(6) because it is not central

to Plaintiff’s claims, and, even assuming that consideration of the Charge is proper without

converting Defendant’s Motion to one for summary judgment, the factual allegations in the Charge

are sufficient to administratively exhaust Plaintiff’s administrative remedies with respect to the

claims in her Amended Complaint that are the subject of the Motion. Thus, regardless of whether

the court considers the Charge, Parkland has not met its burden of establishing its affirmative

defense of failure to exhaust administrative remedies, and it is not entitled to dismissal of Plaintiff’s

claims that are the focus of its Motion. This ruling is not only consistent with the view in this

Circuit that Rule 12(b)(6) motions to dismiss are “disfavored in the law and rarely granted,”6 but

also comports with the requirement that, in reviewing exhaustion under the Rule 12(b)(6) standard,

the court must accept “all well-pleaded facts as true and view[ ] those facts in the light most

favorable to [Ms. Shelton]” while resolving all doubts in her favor. Hamilton, 2023 WL 6635076,

at *3 (quoting Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir. 2018)).

C. Whether Plaintiff was Required to File a Second Charge to Address and

Exhaust her Post-Charge Retaliation Claim

As noted, although Defendant seeks dismissal of Plaintiff’s post-Charge retaliation claim,

it did not address the argument in Plaintiff’s response that the exhaustion exception in Gupta v.

East Texas State University applies and relieved her from any exhaustion requirement as to this

retaliation claim. Likewise, Defendant did not address the applicability of this exception to

Plaintiff’s post-Charge retaliation claim in its Objections to the Report even though it continued

6 Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009) (quoting Collins v. Morgan Stanley

Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (quoting Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, 677

F.2d 1045, 1050 (5th Cir. 1982)).

to argue that the Charge was not sufficient to exhaust any of the claims on which it seeks dismissal

based on its exhaustion defense. Defendant, therefore, waived this issue.7

Even if not waived, the court agrees with Plaintiff that she was not required to exhaust her

post-Charge retaliation claim to the extent that this claim is based on Parkland’s alleged retaliatory

conduct after Plaintiff filed her Charge and grows out of her earlier Charge. Gupta allows the

assertion of retaliation claims that arise from or grow out of an earlier-filed charge. Gupta, 654

F.2d at 414 (“[I]t is unnecessary for a plaintiff to exhaust administrative remedies prior to urging

a retaliation claim growing out of an earlier charge[.]”); but see Sapp v. Potter, 413 F. App’x 750,

752-53 (5th Cir. 2011) (“Because the Gupta exception is premised on avoiding procedural

technicalities, it has only been applied to retaliation claims alone [and not] claims in which both

retaliation and discrimination are alleged.”). Accordingly, Defendant is not entitled to dismissal

of Plaintiff’s post-Charge retaliation claim based on its affirmative defense of failure to exhaust

administrative remedies.

IV. Conclusion

Accordingly, having considered Defendant’s Motion for Partial Dismissal based on its

affirmative defense of failure to exhaust administrative remedies, the parties’ briefs, Plaintiff’s

pleadings, the file, Report, and record in this case, and having conducted a de novo review of the

portions of the Report objected to by Defendant, the court accepts as modified and supplemented

the magistrate judge’s Report (Doc. 22), overrules Defendant’s Objections (Doc. 23), and denies

Defendant’s Motion for Partial Dismissal under Rule 12(b)(6) (Doc. 11). For the reasons

explained, the court also denies as moot Defendant’s earlier Motion to Dismiss (Doc. 5).

7 See Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 190 (5th Cir. 2007) (explaining that inadequately briefed

issues are considered waived).

It is so ordered this 28th day of May, 2025.

Sam A. Lindsay

United States District Judge

Memorandum Opinion and Order — Page 23