Opinion
CIVIL ACTION NO. 3:02-CV-2498-G
May 14, 2003
MEMORANDUM ORDER
Before the court is the motion of the defendant Dal-Tile International, Inc. ("Dal-Tile") to dismiss this case, pursuant to FED. R. CIV. P. 12(b)(6), for failure to state a claim. For the reasons discussed below, Dal-Tile's motion is granted. However, Bannister is granted leave to amend her complaint, within twenty (20) days of this date, to cure the deficiencies noted herein.
I. BACKGROUND
This case involves allegations of employment discrimination by Debbie Bannister ("Bannister") against Dal-Tile, her former employer. On November 15, 2002, Bannister, acting pro se, filed a complaint alleging that Dal-Tile engaged in unlawful employment practices in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981, the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d), and § 21.055 of the Texas Commission on Human Rights Act. See Plaintiff's Original Complaint ("Complaint") ¶¶ 7-12. On January 14, 2003, Dal-Tile filed the instant motion to dismiss Bannister's Title VII disparate impact claim pursuant to FED. R. CIV. P. 12(b)(6). See Docket Sheet. To date, Bannister has not responded to Dal-Tile's motion.
The court notes at the outset that Dal-Tile's motion does not request dismissal of Bannister's remaining claims.
II. ANALYSIS A. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." There are two primary principles that guide the court's determination of whether dismissal under Rule 12(b)(6) should be granted. First, a motion under Rule 12(b)(6) should be granted only if it appears beyond doubt that the plaintiff could prove no set of facts in support of her claim that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir. 1994) (citations omitted); see also Kaiser Aluminum Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (citing Wright Miller, Federal Practice and Procedure: Civil § 1357 at 598 (1969), for the proposition that "the motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted."), cert. denied, 459 U.S. 1105 (1983). Second, the court must accept all well-pleaded facts as true and view them in the light most favorable to the nonmovant. Capital Parks, Inc. v. Southeastern Advertising and Sales System, Inc., 30 F.3d 627, 629 (5th Cir. 1994) (citation omitted); Norman v. Apache Corporation, 19 F.3d 1017, 1021 (5th Cir. 1994) (citations omitted); Chrissy F. by Medley v. Mississippi Department of Public Welfare, 925 F.2d 844, 846 (5th Cir. 1991). Where a plaintiff proceeds pro se, the court is further guided by the general rule that allegations in a pro se complaint are construed more permissively. See Securities and Exchange Commission v. AMX, International, Inc., 7 F.3d 71, 75 (5th Cir. 1993); Brinkmann v. Johnston, 793 F.2d 111, 112 (5th Cir. 1986).
B. Bannister's Disparate Impact Claim
Dal-Tile argues that Bannister's complaint fails to make out a prima facie case of disparate impact under Title VII and therefore should be dismissed pursuant to FED. R. CIV. P. 12(b)(6). See Defendant's Brief in Support of Motion to Dismiss Plaintiff's Claim for Disparate Impact Discrimination Under FED. R. CIV. P. 12(b)(6) for Failure to State a Claim at 1-2. Specifically, Dal-Tile argues that because Bannister's disparate impact claim is "essentially the same" as her disparate treatment claim, "even if [she] proves the facts alleged in the [c]omplaint, i.e., that she was terminated while other male employees retained their employment, and was not promoted when she was equally or more qualified than her male counterparts who received promotions, she has not set forth the essential elements necessary to state a claim upon which relief can be granted for disparate impact discrimination." Id. at 2-3. The court agrees.
Under a disparate impact theory, Bannister can establish that Dal-Tile violated Title VII without a showing of discriminatory intent. To establish a prima facie case of disparate impact discrimination, Bannister must: (1) show that Dal-Tile implemented a facially neutral employment practice or policy which causes a significant disparate impact on employees within her Title VII protected class, see Wards Cove Packing Company, Inc. v. Atonio, 490 U.S. 642, 645-46 (1989); Watson, 487 U.S. at 986-87; Albemarle Paper Company v. Moody, 422 U.S. 405, 425 (1975); Banks v. East Baton Rouge Parish School Board, 320 F.3d 570, 578 (5th Cir. 2003); Frazier v. Garrison I.S.D., 980 F.2d 1514, 1523 (5th Cir. 1993); see also 42 U.S.C. § 2000e-2(k)(1)(A)(i), and (2) pinpoint the specific factor or factors in Dal-Tile's decision-making process responsible for causing the alleged disparate impact. See Wards Cove, 490 U.S. at 657-58; Watson, 487 U.S. at 994-95; Gonzales v. City of New Braunfels, Texas, 176 F.3d 834, 839 n. 26 (5th Cir. 1999); Garcia v. Woman's Hospital of Texas, 97 F.3d 810, 813 (5th Cir. 1996); Johnson v. Uncle Ben's, Inc., 965 F.2d 1363, 1367 (5th Cir. 1992), cert. denied, 511 U.S. 1068 (1994); Barrow v. Greenville Independent School District, 3:00-CV-0913-D, 2002 WL 628665 at *8 (N.D.Tex. April 18, 2002); see also 42 U.S.C. § 2000e-2(k)(1)(A)(i) and (B)(i). Bannister can bypass the second requirement only upon demonstrating that the elements of Dal-Tile's decision-making process are incapable of separation, in which case the court may analyze the entire decision-making process as one employment practice. See 42 U.S.C. § 2000e-2(k)(1)(B)(i).
The disparate impact theory is also commonly referred to as the "adverse" impact theory of discrimination.
This requirement is generally satisfied by establishing that the practice or policy had a "statistically significant" adverse impact on the subject class. See Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 987 (1988); Stout v. Baxter Healthcare Corporation, 282 F.3d 856, 860 (5th Cir. 2002). To prove a statistically significant impact, Bannister may introduce, among others, the following types proof: selection rates, pass/fail comparisons, population/workforce comparisons, regression analyses ( e.g., multiple regression analysis), and other accepted methods of statistical proof. See 1 Barbara Lindemann Paul Grossman, EMPLOYMENT DISCRIMINATION LAW 89-95 (3d. ed. 1996).
Even construing the complaint liberally, the court is unable to discern the factual basis for Bannister's disparate impact claim. First, Bannister has not alleged in any way that her Title VII protected class has been disproportionately affected — much less in a way that is statistically significant — by a facially neutral employment practice or policy implemented by Dal-Tile. See Wards Cove, 490 U.S. at 645-46; Banks, 320 F.3d at 578; Stout, 282 F.3d at 860; Frazier, 980 F.2d at 1523. Second, Bannister has wholly failed to identify any factor in Dal-Tile's decision-making process responsible for causing the alleged impact or to assert that the factors of Dal-Tile's decision-making process are so interwoven that they are incapable of separation. See Wards Cove, 490 U.S. at 657-58; Watson, 487 U.S. at 994-95; Garcia, 97 F.3d at 813; Johnson, 965 F.2d at 1367; 42 U.S.C. § 2000e-2(k)(1)(B)(i).
Instead, Bannister simply avers that "she has been disparately impacted as a result of the aforementioned unlawful actions of [the] [d]efendant." Complaint ¶ 8. This "aforementioned" conduct apparently refers to Bannister's allegations of intentional discrimination, which she asserts under her disparate treatment cause of action. See id. ¶ 7. Disparate treatment and disparate impact are, however, mutually exclusive and often competing theories of discrimination. Unlike the intent-driven disparate treatment analysis, disparate impact focuses exclusively on whether a facially neutral employment practice has resulted in one group being disproportionately favored over another. Garcia, 97 F.3d at 813; Frazier, 980 F.2d at 1523; Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1135 (5th Cir. 1983). Bannister's bare allegations of purposeful discriminatory conduct are, therefore, plainly inadequate to state a prima facie case of disparate impact discrimination under Title VII.
Although Bannister's disparate impact claim also briefly references an allegedly unlawful termination and failure to promote, see id. ¶ 8, it appears that these references are meant to clarify the particular intentional discrimination relied upon in her disparate treatment claim. See id. ¶ 7.
To establish a prima facie case of disparate treatment under Title VII, a plaintiff must offer proof of the defendant's discriminatory intent. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000) (noting that in every employment discrimination case involving a claim of disparate treatment, the plaintiff has the "ultimate burden of persuading the trier of fact" that she "was the victim of intentional discrimination"); Munoz v. Orr, 200 F.3d 291, 299 (5th Cir.) ("Disparate treatment refers to deliberate discrimination in the terms or conditions of employment"), cert. denied, 531 U.S. 812 (2000); Uviedo v. Steves Sash Door Company, 738 F.2d 1425, 1429 (5th Cir. 1984) ("The issue in a disparate treatment case is whether a defendant had a discriminatory intent"), cert. denied, 474 U.S. 1054 (1986).
Accordingly, Bannister's disparate impact claim fails to set forth facts giving rise to a claim upon which relief may be granted. See Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993). Bannister's disparate impact claim additionally violates the notice pleading requirements of FED. R. CIV. P. 8(a)(2) because it does not provide Dal-Tile with "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47. For these reasons, Bannister's disparate impact claim must be dismissed.
III. CONCLUSION
For the reasons set forth above, Bannister's disparate impact claim will be DISMISSED pursuant to FED. R. CIV. P. 12(b)(6). However, in light of her pro se status and the possibility that she may have a viable claim, the court grants Bannister leave to file and serve an amended complaint within twenty (20) days of this date to cure, if she can, the deficient allegations of her disparate impact claim. If no such amended complaint is filed within that time, the disparate impact claim will be deemed dismissed without further notice.