Olivarez v. T-Mobile USA

Case: 20-20463     Document: 00515863607         Page: 1     Date Filed: 05/14/2021

           United States Court of Appeals
                for the Fifth Circuit                                United States Court of Appeals
                                                                              Fifth Circuit

                                                                        May 14, 2021
                                  No. 20-20463
                                                                       Lyle W. Cayce

   Elijah Anthony Olivarez,



   T-Mobile USA, Incorporated; Broadspire Services,


                  Appeal from the United States District Court
                      for the Southern District of Texas
                              No. 4:19-CV-4452

   Before Smith, Stewart, and Ho, Circuit Judges.
   James C. Ho, Circuit Judge:
          We withdraw the court’s prior opinion of May 12, 2021 and substitute
   the following opinion.
          Title VII of the Civil Rights Act of 1964 prohibits employers from
   “discriminat[ing]” against any individual with respect to employment
   “because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Under
   Bostock v. Clayton County, 

140 S. Ct. 1731

(2020), discrimination on the basis
   of sexual orientation or gender identity is a form of sex discrimination under
   Title VII. Accordingly, a plaintiff who alleges transgender discrimination is
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                                   No. 20-20463

   entitled to the same benefits—but also subject to the same burdens—as any
   other plaintiff who claims sex discrimination under Title VII.
          Elijah Olivarez alleges transgender discrimination under Title VII.
   But Olivarez does not allege facts sufficient to support an inference of
   transgender discrimination—that is, that T-Mobile would have behaved
   differently toward an employee with a different gender identity. So we are
   left with this: An employer discharged a sales employee who happens to be
   transgender—but who took six months of leave, and then sought further
   leave for the indefinite future. That is not discrimination—that is ordinary
   business practice. And Olivarez’s remaining issues on appeal are likewise
   meritless. We accordingly affirm.
          Olivarez was employed as a retail store associate for T-Mobile from
   approximately December 21, 2015 to April 27, 2018.
          During the first half of 2016, a supervisor allegedly made demeaning
   and inappropriate comments about Olivarez’s transgender status. Second
   Amended Complaint, ¶¶ 7–8.          Olivarez filed a complaint with human

Id. at ¶8.

In response, T-Mobile allegedly retaliated by reducing
   Olivarez’s hours to part-time from September to November 2016.

Id. at ¶ 9.

          In September 2017, Olivarez stopped coming to work in order to
   undergo egg preservation and a hysterectomy.

Id. at ¶ 10.

The next month,
   Olivarez requested leave to be applied retroactively from September to
   December 2017.

Id. Broadspire Services administers

T-Mobile’s leave

Id. It granted Olivarez

unpaid leave from September 23 to
   December 17, and paid medical leave from December 17 to December 31.

at ¶¶ 11, 13.

In addition, the company granted Olivarez’s request for an
   extension of leave through February 18, 2018.

Id. at ¶ 14.

But it denied a
   further extension of leave in March 2018.

Id. at ¶ 15–16.


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            T-Mobile fired Olivarez on April 27, 2018. The Equal Employment
   Opportunity Commission issued a right-to-sue letter to Olivarez on August
   15, 2019.
            On November 12, 2019, Olivarez filed suit against T-Mobile and
   Broadspire. The first complaint asserted (1) interference, discrimination,
   and retaliation under the Family and Medical Leave Act, 29 U.S.C. § 2601 et
   seq., (2) discrimination and retaliation under Title VII of the Civil Rights Act
   of 1964, 42 U.S.C. § 2000e et seq., and (3) discrimination under the
   Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.
            The district court granted Olivarez’s motion to amend the complaint
   on November 22, 2019, and Olivarez filed a First Amended Complaint the
   same day. The amended complaint asserted the same claims and allegations.
            On February 13, 2020, the district court entered a scheduling order
   pursuant to Federal Rule of Civil Procedure 16. That order set a deadline of
   March 13 to amend pleadings “with leave of court.” Both T-Mobile and
   Broadspire moved to dismiss for failure to state a claim under Federal Rule
   of Civil Procedure 12(b)(6). Olivarez opposed both motions and asserted the
   right to further amend the complaint under Federal Rule of Civil Procedure
            On March 27, 2020, the district court denied T-Mobile’s and
   Broadspire’s motions without prejudice and allowed Olivarez to further
   amend the complaint by April 17. The district court expressly stated that
   Olivarez’s pleadings were deficient and granted leave to amend the
   complaint “so that it is responsive to the issues raised by the Moving
   Defendants’ motions to dismiss.”
            Olivarez filed a Second Amended Complaint on April 16, 2020. As
   relevant to this appeal, that complaint presented the same facts and claims.
   On April 30, T-Mobile and Broadspire moved to dismiss under Rule 12(b)(6).

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   Olivarez opposed these motions, but did not request leave to further amend
   the complaint.
          The district court granted both motions to dismiss.           The court
   dismissed the Title VII discrimination claim on the ground that the Second
   Amended Complaint failed to allege that Olivarez was treated less favorably
   than similarly situated employees outside Olivarez’s protected class. The
   court dismissed the ADA discrimination claim because the Second Amended
   Complaint did not allege sufficient facts to show Olivarez was disabled.
          Olivarez filed a motion for reconsideration of the final judgment
   pursuant to Federal Rule of Civil Procedure 59(e) and a motion to further
   amend the complaint under Rule 15(a). The district court denied both
   motions. The district court’s order did not discuss the reasons for denying
   reconsideration, but it stated that it denied the motion to amend pursuant to
   Rule 16(b). Olivarez timely appealed, but raises only the Title VII and ADA
          We “review the grant of a motion to dismiss under Rule 12(b)(6) de
   novo, accepting all well-pleaded facts as true and viewing those facts in the
   light most favorable to the plaintiff[].” Meador v. Apple, Inc., 

911 F.3d 260

   264 (5th Cir. 2018) (quotation omitted). Rule 12(b)(6) governs dismissal for
   “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
   P. 12(b)(6). Under Rule 8(a)(2), a pleading must contain “a short and plain
   statement of the claim showing that the pleader is entitled to relief.” Fed.
   R. Civ. P. 8(a)(2). Although “the pleading standard Rule 8 announces
   does not require ‘detailed factual allegations,’ . . . it demands more than . . .
   ‘labels and conclusions.’” Ashcroft v. Iqbal, 

556 U.S. 662

, 678 (2009)
   (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544

, 555 (2007)). And “[a]
   complaint survives a motion to dismiss only if it pleads factual content that
   allows the court to draw the reasonable inference that the defendant is liable
   for the misconduct alleged.” 

Meador, 911 F.3d at 264

(quotation omitted).

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          At the Rule 12(b)(6) stage, our analysis of the Title VII claim is
   governed by Swierkiewicz v. Sorema N.A., 

534 U.S. 506

(2002)—and not the
   evidentiary standard set forth in McDonnell Douglas Corp. v. Green, 

411 U.S.

(1973). Under Swierkiewicz, we have explained, “there are two ultimate
   elements a plaintiff must plead to support a disparate treatment claim under
   Title VII: (1) an adverse employment action, (2) taken against a plaintiff
   because of her protected status.” Cicalese v. Univ. of Texas Med. Branch, 

F.3d 762

, 767 (5th Cir. 2019) (quotations omitted) (citing Raj v. La. State

714 F.3d 322

, 331 (5th Cir. 2013)).
          But “[a]lthough [a plaintiff does] not have to submit evidence to
   establish a prima facie case of discrimination [under McDonnell Douglas] at
   this stage, he [must] plead sufficient facts on all of the ultimate elements of a
   disparate treatment claim to make his case plausible.” Chhim v. Univ. of
   Texas at Austin, 

836 F.3d 467

, 470 (5th Cir. 2016). And when a plaintiff’s
   Title VII disparate treatment discrimination claim depends on circumstantial
   evidence, as Olivarez’s does, the plaintiff “will ‘ultimately have to show’ that
   he can satisfy the McDonnell Douglas framework.” 

Cicalese, 924 F.3d at 767


Chhim, 836 F.3d at 470

). “In such cases, we have said that it can be
   ‘helpful to reference’ that framework when the court is determining whether
   a plaintiff has plausibly alleged the ultimate elements of the disparate
   treatment claim.” Id. (quoting 

Chhim, 836 F.3d at 470

          Under McDonnell Douglas, a plaintiff must establish a prima facie case

discrimination. 411 U.S. at 802

. Specifically, a plaintiff must allege facts
   sufficient to support a finding “that he was treated less favorably than others
   outside of his protected class.” Alkhawaldeh v. Dow Chem. Co., 

851 F.3d 422

   427 (5th Cir. 2017).
          Accordingly, when a complaint purports to allege a case of
   circumstantial evidence of discrimination, it may be helpful to refer to
   McDonnell Douglas to understand whether a plaintiff has sufficiently pleaded

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   an adverse employment action taken “because of” his protected status as
   required under Swierkiewicz. 

Cicalese, 924 F.3d at 767

(quotation omitted).
          Applying these principles here, there is no dispute that Olivarez
   suffered an adverse employment action. However, Olivarez has failed to
   plead any facts indicating less favorable treatment than others “similarly
   situated” outside of the asserted protected class. See

id. In fact, the

   Amended Complaint does not contain any facts about any comparators at all.
   The complaint simply indicates that Olivarez took six months of leave from
   September 2017 to February 2018—including an extension granted by T-
   Mobile and Broadspire—and that when Olivarez requested additional leave
   in March 2018, T-Mobile denied the request and terminated Olivarez’s
   employment in April 2018.
          Notably, there is no allegation that any non-transgender employee
   with a similar job and supervisor and who engaged in the same conduct as
   Olivarez received more favorable treatment. And comparator allegations
   aside, the complaint presents no other facts sufficient to “nudge[] [the]
   claims across the line from conceivable to plausible.” 

Twombly, 550 U.S. at

. In sum, the complaint does not plead any facts that would permit a
   reasonable inference that T-Mobile terminated Olivarez because of gender
          Olivarez’s ADA discrimination claim fails for similar reasons. A claim
   of discrimination under the ADA requires a plaintiff to allege a disability, that
   he was qualified for his position, and that he suffered an adverse employment
   action because of his disability. Neely v. PSEG Tex., Ltd. P’ship, 

735 F.3d 242

   245 (5th Cir. 2013).      Olivarez failed to sufficiently allege an adverse
   employment action because of disability. See

id. At most, Olivarez

made a
   conclusory allegation that T-Mobile and Broadspire “discriminated against
   [Olivarez] based on [a] disability.” But the Rule 8 pleading standard
   demands more than conclusory statements. 

Iqbal, 556 U.S. at 678

. “A
   complaint survives a motion to dismiss only if it pleads factual content that

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   allows the court to draw the reasonable inference that the defendant is liable
   for the misconduct alleged.” 

Meador, 911 F.3d at 264

(quotation omitted).
          Finally, as for retaliation under Title VII, the claim is untimely. Title
   VII requires a plaintiff to file an administrative charge no later than 300 days
   “after the alleged unlawful employment practice occurred.” 42 U.S.C.
   § 2000e-5(e)(1).    Olivarez alleges retaliation for complaining about a
   supervisor’s demeaning and inappropriate comments in 2016, but did not file
   an administrative charge until 2018. As a result, the retaliation claim is
   untimely—a contention Olivarez does not dispute on appeal. See Brinkmann
   v. Dallas Cnty. Deputy Sheriff Abner, 

813 F.2d 744

, 746 (5th Cir. 1987)
   (explaining that, when an appellant fails to identify any error in the district
   court’s analysis, it is the same as if the appellant had not appealed).
          According to Olivarez, the district court should have reconsidered its
   decision to dismiss the gender discrimination claims under Federal Rule of
   Civil Procedure 59(e). Rule 59(e) allows a party to seek to alter or amend a
   judgment “when there has been an intervening change in the controlling
   law.” Schiller v. Physicians Res. Grp., Inc., 

342 F.3d 563

, 567–68 (5th Cir.
   2003). “Reconsideration of a judgment after its entry is an extraordinary
   remedy that should be used sparingly.” Templet v. HydroChem Inc., 

367 F.3d

, 479 (5th Cir. 2004). As a result, “[w]e review the denial of a Rule 59(e)
   motion only for abuse of discretion.” Simon v. United States, 

891 F.2d 1154

   1159 (5th Cir. 1990).
          Olivarez contends that, after the district court granted the motions to
   dismiss, Bostock changed the law and created a lower standard for those
   alleging discrimination based on gender identity. T-Mobile and Broadspire
   argue that Bostock did no such thing.
          We agree with T-Mobile and Broadspire.              Bostock defined sex
   discrimination to encompass sexual orientation and gender identity

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   discrimination. But it did not alter the meaning of discrimination itself. At
   the pleading stage, a Title VII plaintiff must plead sufficient facts to make it
   plausible that he was discriminated against “because of” his protected status.

Cicalese, 924 F.3d at 767

(quotation omitted). At the summary judgment
   stage, when the claim relies on circumstantial evidence, a Title VII plaintiff
   must identify a more favorably treated comparator in order to establish
   discrimination. Bostock does not alter either of those standards.
           To the contrary, Bostock expressly reaffirms these principles. It states
   that “[a]n employer who fires an individual for being homosexual or
   transgender fires that person for traits or actions it would not have questioned
   in members of a different 

sex.” 140 S. Ct. at 1737

. Moreover, Bostock
   employs various hypothetical comparators to support its analysis. See, e.g.

id. at 1741

(“Consider . . . an employer with two employees, both of whom
   are attracted to men. The two individuals are, to the employer’s mind,
   materially identical in all respects, except that one is a man and the other a
   woman. If the employer fires the male employee for no reason other than the
   fact he is attracted to men, the employer discriminates against him for traits
   or actions it tolerates in his female colleague.”).
           Accordingly, there is no intervening change of law that warrants
   reconsideration under Rule 59(e). 1
           Finally, Olivarez argues that the district court abused its discretion in
   denying leave to amend the complaint, because the good cause standard
   under Federal Rule of Civil Procedure 16(b) does not apply here.

             Olivarez also argues that the district court erred in refusing to reconsider the
   dismissal of the ADA claim. However, in the motion for reconsideration, Olivarez only
   argued for reconsideration of the Title VII discrimination claim. “This court will not
   consider arguments first raised on appeal.” Estate of Duncan v. Comm’r of Internal Revenue,

890 F.3d 192

, 202 (5th Cir. 2018). Olivarez has therefore forfeited this argument.

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          “We review for abuse of discretion the district court’s denial of leave
   to amend.” S&W Enters., L.L.C. v. SouthTrust Bank of Alabama, NA, 

F.3d 533

, 535 (5th Cir. 2003). “A district court possesses broad discretion in
   its decision whether to permit amended complaints.” Crostley v. Lamar

717 F.3d 410

, 420 (5th Cir. 2013).
          We have “ma[d]e clear that Rule 16(b) governs amendment of
   pleadings after a scheduling order deadline has expired.” S&W 

Enters., 315
F.3d at 536

. A scheduling order “may be modified only for good cause and
   with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The good cause
   standard requires a showing by the movant that “the deadlines cannot
   reasonably be met despite the diligence of the party needing the extension.”

Enters., 315 F.3d at 535

(quotation omitted). It is “[o]nly upon the
   movant’s demonstration of good cause to modify the scheduling order [that]
   the more liberal standard of Rule 15(a) appl[ies] to the district court’s
   decision to grant or deny leave.”

Id. at 536.

          The district court’s scheduling order set a deadline of March 13, 2020
   for amendments with leave of court. Olivarez requested leave to amend the
   First Amended Complaint on February 12, 2020.             After denying the
   defendants’ initial motions to dismiss, the court allowed Olivarez to file a
   Second Amended Complaint on April 16, 2020. The court then granted the
   defendants’ second motions to dismiss on April 30, 2020.
          Olivarez filed a motion to submit a Third Amended Complaint on July
   7, 2020—well after the court’s March 13 deadline. Accordingly, the district
   court was correct to apply the good cause standard of Rule 16(b).

Id. And
Olivarez failed

to meet that standard. There is no explanation for the five-
   month delay before pleading the facts and allegations in the Third Amended
   Complaint.    Nor is there any suggestion that any of those facts were
   unavailable when filing the previous three complaints. Nor did Olivarez
   request an opportunity to replead in response to the second motion to
   dismiss. In sum, there is no good cause here to justify further amendment to

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   the complaint. The district court accordingly did not abuse its discretion in
   denying further leave to amend. 2
           “Title VII protects every American, regardless of sexual orientation
   or transgender status. It simply requires proof of sex discrimination.”
   Wittmer v. Phillips 66 Co., 

915 F.3d 328

, 340 (5th Cir. 2019) (Ho, J.,
   concurring). That was true before Bostock, and it remains true after Bostock.
   Under Bostock, transgender discrimination is a form of sex discrimination
   under Title VII. But a plaintiff claiming transgender discrimination under
   Bostock must plead and prove just that—discrimination. We affirm.

             Separate and apart from Rule 16(b), there is also the matter of Rule 15(a). Under
   Rule 15(a), a district court may deny leave to amend when there has been “undue delay”
   or “repeated failure to cure deficiencies by amendments previously allowed.” Rosenzweig
   v. Azurix Corp., 

332 F.3d 854

, 864 (5th Cir. 2003) (quotations omitted). The district court
   here noted Olivarez “previously filed two amended complaints.” Olivarez failed to cure
   the defects in those complaints despite notice from both the district court and the
   defendants. See Herrmann Holdings Ltd. v. Lucent Techs. Inc., 

302 F.3d 552

, 567 (5th Cir.
   2002) (explaining that, where the plaintiffs had “already filed an original complaint and
   two amended complaints, each alleging [similar] claims,” they had been “given ample
   opportunity to plead their statutory claims,” and therefore it was not an abuse of discretion
   to deny leave to amend further). Denial was therefore proper under Rule 15(a) as well as
   Rule 16(b).


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