Case: 20-20463 Document: 00515863607 Page: 1 Date Filed: 05/14/2021
`
`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 20-20463
`
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`May 14, 2021
`
`Lyle W. Cayce
`Clerk
`
`Elijah Anthony Olivarez,
`
`
`Plaintiff—Appellant,
`
`
`
`versus
`
`
`T-Mobile USA, Incorporated; Broadspire Services,
`Incorporated,
`
`
`Defendants—Appellees.
`
`
`
`
`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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`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.
`
`I.
`
`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
`resources. 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
`programs. Id. It granted Olivarez unpaid leave from September 23 to
`December 17, and paid medical leave from December 17 to December 31. Id.
`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
`15(a).
`
`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
`claims.
`
`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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`II.
`
`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.
`792 (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, 924
`F.3d 762, 767 (5th Cir. 2019) (quotations omitted) (citing Raj v. La. State
`Univ., 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
`(quoting 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
`of 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 Second
`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
`547. In sum, the complaint does not plead any facts that would permit a
`reasonable inference that T-Mobile terminated Olivarez because of gender
`identity.
`
`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).
`
`III.
`
`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
`473, 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
`
`IV.
`
`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.
`
`
`
`1 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, 315
`F.3d 533, 535 (5th Cir. 2003). “A district court possesses broad discretion in
`its decision whether to permit amended complaints.” Crostley v. Lamar
`Cnty., 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.”
`S&W 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.
`
`
`
`
`
`2 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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