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At a Glance:
Aguirre v. McDonalds Corporation
June 15, 2015
Unpublished Opinion

Aguirre v. McDonalds Corporation

United States District Court, W.D. Texas, El Paso Division.

Rachel AGUIRRE, Plaintiff,





Signed 06/15/2015

Attorneys & Firms

Carlos Miguel Quinonez, Quinonez & Salayandia Law Firm, PLLC, El Paso, TX, for Plaintiff.

Clara B. Burns, Kemp Smith LLP, El Paso, TX, for Defendant.



*1 On this day, the Court considered Defendant McDonald’s Corporation’s “Motion to Dismiss Under Rule 12(b)(6)” (ECF No. 12) [hereinafter “Motion”], filed on May 21, 2015, in the above-captioned cause. In its Motion, Defendant argues that Plaintiff Rachel Aguirre’s “Original Complaint and Jury Demand” (ECF No. 1) [hereinafter “Complaint”], should be dismissed for failure to state claims upon which relief can be granted. Mot. 1. Plaintiff filed no timely response to Defendant’s Motion. After affording Defendant’s arguments due consideration, the Court concludes that Defendant’s Motion should be granted in part and denied in part for the reasons that follow.


Plaintiff worked for Defendant for sixteen years before being promoted to the position of Operations Consultant on October 15, 2012. Compl. 2. Until that time, she had “performed exceptionally well,” and her employment record was devoid of blemishes. Id.

At the time of Plaintiff’s promotion, she was one of three Operations Consultants working in one of Defendant’s “profit center[s].” Id. On or about March 2013, the other two Operations Consultants resigned and Plaintiff was “left to handle the work of three people ... for about 2 months.” Id. On or about May 2013, two new male Operations Consultants came on board—one was “brought in from another region,” while the other “was promoted from within the local profit center.” Id. In September 2013, Plaintiff was “placed on a one week suspension,” which was allegedly “a pretext to get her fired.” Id. 2–3. Soon afterwards, Plaintiff “was aggressively confronted by her supervisor, the security officer, and the human resources employee and pressed for her acceptance for a demotion.” Id. at 3. Plaintiff allegedly “suffered an adverse action and was singled out for her performance, even thought [sic] she was performing exactly as her male counterparts.” Id.

Plaintiff asserts that her “poor treatment started once the other two male counterparts where [sic] hired.” Id. As for the nature of that treatment, Plaintiff alleges that she “was unlawfully critiqued for how she performed her duties when she was doing everything exactly as her male counterparts.” Id. She also states that “[w]hen speaking with human resources, she was told to conform to traditional notions of female demeanor.” Id.

Finally, Plaintiff avers that during her employment with Defendant, she “earned a paid sabbatical ... [but] was never given this paid sabbatical.” Id.


Pursuant to Federal Rule of Civil Procedure 12(b)(6), a court may dismiss an action for “failure to state a claim upon which relief can be granted.” In determining whether a plaintiff states a valid claim, a court “accept[s] all well-pleaded facts as true and view[s] those facts in the light most favorable to the plaintiffs.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)) (internal quotation mark omitted).

*2 In terms of substance, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A pleading that offers mere “ ‘labels and conclusions’... will not do,” especially when it simply tenders “ ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Id. (second alteration in original) (quoting Twombly, 550 U.S. at 555, 557).


A. Sex Discrimination

In her first claim, Plaintiff contends that Defendant “intentionally engaged in unlawful employment practices involving [her] because she is a female.” Compl. 3. Defendant interprets this portion of Plaintiff’s Complaint as raising a sex-discrimination claim based on a theory of disparate impact. Defendant consequently argues that the claim should be dismissed because it fails as a matter of law under Title VII. Mot. 2. While there is some merit to Defendant’s argument, it is not clear that Plaintiff wholly relies upon a disparate-impact theory of discrimination in proffering this claim. Thus, for the reasons discussed below, the Court declines to dismiss this claim outright and will instead grant Defendant’s request only to the extent that Plaintiff offers a disparate-impact claim.

“Title VII prohibits both intentional discrimination (known as ‘disparate treatment’) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as ‘disparate impact’).” Ricci v. DeStefano, 557 U.S. 557, 577 (2009). Disparate treatment “occur[s] where an employer has ‘treated [a] particular person less favorably than others because of’ a protected trait.” Id. (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985–86 (1988)). In contrast, disparate impact claims “involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003) (quoting Teamsters v. United States, 431 U.S. 324, 335–36 n.15 (1977)). These two theories of discrimination constitute “the only causes of action under Title VII.” EEOC v. Abercrombie & Fitch Stores, Inc., No. 14–86, 2015 WL 2464053, at *3 (U.S. June 1, 2015).

Plaintiff’s sex-discrimination claim incorporates language that partakes of both theories. For example, at paragraph nine of her Complaint, Plaintiff contends that Defendant “discriminated against Plaintiff in connection with the compensation, terms, conditions and privileges of employment ... because of her sex.” Compl. 3. This allegation appears to raise a disparate-treatment theory of discrimination. In the following paragraph, however, Plaintiff states that “[t]he unlawful employment practices of Defendant ... had a disparate and adverse impact on Plaintiff because Plaintiff is a female ... and [the practices] were not consistent with business necessity.” Id. at 3–4. This clearly employs a disparate-impact theory of discrimination.

To the extent that Plaintiff proffers a disparate-impact claim, Defendant is correct that it fails as a matter of law. Establishing a prima facie case of discrimination via a disparate-impact theory requires “(1) an identifiable, facially neutral personnel policy or practice; (2) a disparate effect on members of a protected class; and (3) a causal connection between the two.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 275 (5th Cir. 2008). Plaintiff’s Complaint fails to plead the first two elements. Regarding the first element, Plaintiff offers no allegations regarding any identifiable, facially neutral personnel policy or practice applied by Defendant. Regarding the second element, it is insufficient for Plaintiff simply to assert that Defendant’s employment practices resulted in “a disparate and adverse impact on [her].” Compl. 3. Rather, such impact must be felt by “members of a protected class.” McClain, 519 F.3d at 275.

*3 Although Defendant specifically challenges Plaintiff’s invocation of a disparate-impact theory of discrimination, it offers no arguments regarding Plaintiff’s reliance on a disparate-treatment theory of discrimination. Thus, insofar as Plaintiff bases her sex-discrimination claim on a disparate-impact theory, it is dismissed. Insofar as Plaintiff grounds her sex-discrimination claim in a disparate-treatment theory, it survives.

B. Constructive Discharge

Plaintiff further alleges in her Complaint that Defendant “made the working conditions so intolerable that Plaintiff felt compelled to resign her position.” Compl. 4. Defendant argues that Plaintiff has framed “constructive discharge as [a] separate cause of action and does not plead any facts to connect the alleged constructive discharge to any unlawful discrimination.” Mot. 4. Consequently, Defendant urges the Court to dismiss this claim. Id.

Defendant is correct that “constructive discharge is not itself a cause of action”—rather, it provides “a means of proving the element of an adverse employment action where the employee quits instead of being fired.” Wells v. City of Alexandria, No. 03–30750, 2004 WL 909735, at *3 (5th Cir. Apr. 29, 2004) (unpublished). Establishing constructive discharge requires a plaintiff to “prove that ‘working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’ ” Landgraf v. USI Film Prods., 968 F.2d 427, 429 (5th Cir. 1992) (quoting Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir. 1980)), aff’d, 511 U.S. 244 (1994). Doing so enables that party “to recover back pay for lost wages beyond the date of his retirement or resignation.” Jurgens v. EEOC, 903 F.2d 386, 389 (5th Cir. 1990).

After reviewing carefully Plaintiff’s Complaint, the Court believes that Plaintiff offers her allegation of constructive discharge as a means of pleading the requisite adverse employment action in her sex-discrimination claim. See Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001) (noting the need to identify an adverse employment action in a disparate-treatment case). In the portion of her Complaint setting forth her sex-discrimination claim, Plaintiff asserts that Defendant “discriminated against [her] in connection with the compensation, terms, conditions and privileges of employment,” and thereby “adversely affect[ed] her status as an employee.” Compl. 3. That section does not identify any adverse employment action allegedly suffered by Plaintiff. However, Plaintiff appears to be no longer employed by Defendant, as the factual summary contained in her Complaint asserts that she “earned a paid sabbatical” but “was never given [it].” Id. Moreover, Plaintiff asserts that she has “suffered damages for which [she] herein sues” on a theory of constructive discharge. Id. at 4. Presumably, this refers to the “back pay from the date that Plaintiff was denied equal pay for equal work and interest on the back pay” that Plaintiff lists as requested relief in her Complaint. Id. at 5. Putting two and two together, the Court infers that Plaintiff felt compelled to resign from her employment with McDonald’s and seeks to recover back pay for lost wages beyond the date of her resignation.

Thus, because the Court finds that Plaintiff may fairly be construed as proffering her constructive discharge allegation as (1) an adverse employment action for purposes of bolstering her sex-discrimination claim, and (2) a basis for seeking back pay, the Court will deny Defendant’s request to dismiss this allegation.

C. Negligence

*4 In her Complaint, Plaintiff charges that Defendant owed her “a legal duty of care,” “breached [that] duty,” and “proximately caused injury to [her].” As Defendant correctly notes, however, Plaintiff offers no factual allegations that distinguish her negligence claim from her sex-discrimination claim—Plaintiff supplies no additional facts detailing what duty was owed by Defendant, how Defendant breached that duty, and how that breach proximately caused her injuries. Consequently, the Court has little choice but to conclude that the same factual allegations underlie both claims.

This conclusion, however, requires that Plaintiff’s negligence claim be dismissed. As a matter of state law, the Texas Workers’ Compensation Act “provides the exclusive remedy for injuries sustained by an employee in the course of his employment as a result of his employer’s negligence.” 102 F.3d 199, 203 (5th Cir. 1997) (emphasis added).2 Thus, insofar as Plaintiff’s negligence claim is premised on alleged negligence committed by Defendant in the context of Plaintiff’s employment, Plaintiff can seek no solace in Texas tort law and her claim must be dismissed.

D. Quantum Meruit

Plaintiff also seeks recovery pursuant to a theory of quantum meruit, alleging that she “provided valuable services or materials,” which Defendant “accepted, used and enjoyed,” and for which Defendant understood that Plaintiff expected to be compensated. Compl. 4. Presumably, Plaintiff seeks compensation for the “paid sabbatical” that she earned but never received. Id. at 3.

“Quantum meruit is an equitable remedy based on an implied promise to pay for benefits received.” Houston Med. Testing Servs., Inc. v. Mintzer, 417 S.W.3d 691, 695 (Tex. App.—Houston 2013, no pet.). “[A] party generally cannot recover under quantum meruit where there is a valid contract covering the services or materials furnished.” Id. (quoting In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 740 (Tex. 2005)) (internal quotation marks omitted). Such a rule exists because “[w]hen the parties themselves create a valid contract, there can be no recovery under a contract implied by law.” Id.

Plaintiff’s claim must be dismissed because it runs afoul of this rule. To be sure, Plaintiff’s Complaint does not make clear, one way or another, whether she worked for Defendant pursuant to an employment contract or agreement. However, all indications in her Complaint suggest that she did. First, the Court takes note of Plaintiff’s assertion that “as a result of her hard work and dedication,” she “earned a paid sabbatical.” Compl. 3 (emphasis added). This would seem to indicate that Plaintiff earned her sabbatical by virtue of her compliance with certain preconditions contained in her employment agreement with Defendant. Moreover, Plaintiff states in her sex-discrimination claim that Defendant “discriminated against [her] in connection with the compensation, terms, conditions, and privileges of employment.” Id. (emphasis added). Certainly, the existence of terms and conditions related to Plaintiff’s employment is suggestive of an employment contract. Finally, the Court takes note of Plaintiff’s request that the Court order Defendant to “[r]ehire Plaintiff” and “[r]einstate Plaintiff to the position and pay grade which Plaintiff held.” Id. at 6. Both demands are highly suggestive of an employment agreement that existed between the parties in the past, and to which Plaintiff would like to return.

*5 For these reasons, the Court concludes that the remedy of quantum meruit is unavailable to Plaintiff in her employment dispute with Defendant, as all signs in her Complaint point to the presence of a prior employment agreement or contract between Plaintiff and Defendant. Furthermore, even if it were the case that Plaintiff was in fact employed by Defendant without a governing employment agreement or contract, Plaintiff nonetheless failed to plead the requisite factual predicate—the absence of an employment agreement or contract—necessary to render quantum meruit available as a threshold matter. Put more simply, because quantum meruit requires the absence of a valid contract covering the services rendered, Plaintiff needed to plead in her Complaint that such a situation existed in her case. She failed to do so. Thus, though the Court has an obligation to construe all facts in the light most favorable to Plaintiff for purposes of adjudicating Defendant’s Motion, there are no facts from which the Court could infer the absence of an employment agreement or contract, which is necessary to render quantum meruit an available remedy in equity.

E. Retaliation

In Plaintiff’s final claim against Defendant, she alleges that Defendant “instituted a campaign of retaliation” in response to “Plaintiff exercising her rights.” Id. at 4. The Court agrees with Defendant that this claim must be dismissed because “Plaintiff’s allegations are devoid of any mention of any protected conduct in which she allegedly engaged.” Mot. 7.

In the context of Title VII, “[a] plaintiff establishes a prima facie case for unlawful retaliation by proving (1) that she engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action.” Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996). “An employee has engaged in activity protected by Title VII if she has either (1) ‘opposed any practice made an unlawful employment practice’ by Title VII or (2) ‘made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing’ under Title VII.” Id. (quoting 42 U.S.C. § 2000e–3(a)). The former is known as the “opposition clause,” while the latter is referred to as the “participation clause.” See Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 274 (2009).

Plaintiff fails to proffer any allegations that would bring her activity within the gambit of either the Opposition Clause or the Participation Clause. Plaintiff avers that she was unfairly suspended, aggressively confronted by her superiors, pressed to accept a demotion, singled out based on her sex, and unlawfully critiqued for how she performed her duties. Compl. 2–3. Nowhere, however, does she offer any indication that she opposed a practice made an unlawful employment practice by Title VII. Similarly, Plaintiff provides no allegations suggesting that she participated in any investigation, proceeding, or hearing under Title VII.

Plaintiff’s sole assertion regarding the retaliation she allegedly suffered is that it “was and is due to Plaintiff exercising her rights.” Id. at 4. This statement alone, however, does nothing to tie her “exercis[e] [of] her rights” to either the Opposition Clause or the Participation Clause. The Court is simply left to ponder how or why Plaintiff’s actions should be deemed to constitute protected activity for purposes of the Opposition Clause or Participation Clause.3 Consequently, Plaintiff’s retaliation claim must be dismissed for failure to state a claim on which relief can be granted.


For the foregoing reasons, the Court concludes that Defendant’s Motion should be granted in part and denied in part.

Accordingly, IT IS ORDERED that Defendant McDonald’s Corporation’s “Motion to Dismiss Under Rule 12(b)(6)” (ECF No. 12) is hereby GRANTED IN PART AND DENIED IN PART.



The following set of facts derives from Plaintiff’s Complaint and are taken as true for purposes of adjudicating Defendant’s Motion. See infra Part II.


In Ward, the Fifth Circuit held that the Texas Workers’ Compensation Act preempted the plaintiff’s claims of premises liability and negligent hiring, supervision, and retention. See Ward v. Bechtel Corp., 102 F.3d 199, 204 (5th Cir. 1997). The plaintiff in Ward also brought Title VII claims alleging workplace discrimination on the basis of sex, race, and national origin, id. at 201, which were based on largely the same facts as her state law claims.


For the same reason, the Court lacks a basis on which to find a causal link between the alleged protected activity and the adverse employment action Plaintiff suffered.

End of Document