     Case: 15-51078      Document: 00513624719         Page: 1    Date Filed: 08/04/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit


                                      No. 15-51078
                                                                             FILED
                                                                        August 4, 2016
                                                                        Lyle W. Cayce
ELSA CUELLAR,                                                                Clerk

              Plaintiff - Appellant

v.

SOUTHWEST GENERAL EMERGENCY PHYSICIANS, P.L.L.C., doing
business as Hospital Physician Partners,

              Defendant - Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:15-CV-434


Before STEWART, Chief Judge, and PRADO and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
       The district court dismissed Elsa Cuellar’s Title VII retaliation claim.
We REVERSE and REMAND for further proceedings.
                  FACTS AND PROCEDURAL BACKGROUND
       Nurse practitioner Elsa Cuellar filed this lawsuit against her employer,
Southwest General Emergency Physicians d/b/a Hospital Physician Partners
(“HPP”), alleging sexual harassment and retaliation in violation of Title VII of


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 15-51078
the Civil Rights Act.      In her complaint, Cuellar alleged her “supervisor”
sexually harassed her by “promis[ing] to spank her if she misbehaved” and that
she was discharged after reporting his conduct. Cuellar provided more detail
in an EEOC charge, contending that a physician made the offending comment
on June 9, 2013.      Cuellar asserted that on August 26, she reported the
physician’s conduct to human resources personnel and requested a scheduling
change so that she would not have to work with him. Cuellar alleged that HPP
terminated her employment on September 9, citing her failure to get along
with others and her schedule change request as the reasons for her discharge.
      HPP filed a motion to dismiss for failure to state a claim, attaching
Cuellar’s EEOC charge as an exhibit. The district court granted the motion,
effectively denying Cuellar’s request to amend her complaint. Cuellar now
appeals only the dismissal of her retaliation claim.


                                   DISCUSSION
      Dismissal for failure to state a claim is reviewed de novo. Bowlby v. City
of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). All well-pled facts are accepted
as true and examined “‘in the light most favorable to the plaintiff.’” Id. (quoting
Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010)). If a complaint
fails to plead sufficient “facts to state a claim . . . that is plausible,” rather than
merely conceivable, on its face, dismissal is appropriate. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
[complaint’s] factual content . . . allows the court to draw the reasonable
inference that the defendant is liable . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
      To survive a Rule 12(b)(6) motion, a plaintiff alleging Title VII retaliation
must plead facts showing: “‘(1) that [she] engaged in [protected] activity . . . ,
(2) that an adverse employment action occurred, and (3) that a causal link
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                                 No. 15-51078
existed between the protected activity and the adverse employment action.’”
Roberson v. Alltel Info. Servs., 373 F.3d 647, 655 (5th Cir. 2004) (quoting Long
v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996)). We look to the sufficiency
of the facts in both Cuellar’s complaint and EEOC charge, as Cuellar referred
to her charge in her complaint and HPP included the charge as an exhibit to
its motion to dismiss. “Documents that a defendant attaches to a motion to
dismiss are considered part of the pleadings if they are referred to in the
plaintiff’s complaint and are central to her claim.” Causey v. Sewell Cadillac-
Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004).
      In the complaint and charge, Cuellar alleged her employment was
terminated because she reported the physician’s comment. Termination, of
course, is a Title VII adverse employment action. See Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 62−67 (2006). HPP does not contend that
Cuellar inadequately pled causation. Therefore, this case turns on the first
element: whether Cuellar engaged in protected activity.
      Protected activity under Title VII is either “oppos[ing] any practice made
. . . unlawful . . . by this subchapter,” or “ma[king] a charge, testif[ying],
assist[ing], or participat[ing] in any manner in an investigation, proceeding, or
hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). “The first of these is
known as the ‘opposition clause;’ the second as the ‘participation clause.’”
EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 239 (5th Cir. 2016). Participation
clause protected activity is not at issue, as Cuellar filed her EEOC charge after
her employment was terminated. 42 U.S.C. § 2000e-3(a). Cuellar attempts to
state opposition clause protected activity only — in other words, that she
opposed the physician’s conduct by reporting him to human resources. To state
a retaliation claim based on opposition clause protected activity, a plaintiff
must show she “reasonably believed” the employment practice she opposed was
unlawful under Title VII.     See Rite Way, 819 F.3d at 240 (citing Payne v.
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McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. Unit A
Sept. 1981)).
      Here, HPP argues that even when Cuellar’s complaint is “buttressed by
the small set of extra facts alleged in” her EEOC charge, Cuellar still fails to
state a claim of retaliation.   A “single comment by a co-worker[,]”        HPP
contends, “does not amount to actionable harassment.”            Thus, Cuellar
unreasonably believed she was opposing conduct that violated Title VII, and
her claim must be dismissed.
      HPP relies in part our decision in Turner v. Baylor Richardson Medical
Center, 476 F.3d 337 (5th Cir. 2007). In that case, a plaintiff claimed Title VII
retaliation after she asked a supervisor to stop referring to inner city children
as “ghetto children” and was later discharged. Id. at 342−43. We affirmed
summary judgment for the defendant employer, concluding that the plaintiff
“could not have reasonably believed that [the] . . . statements constituted an
unlawful employment practice in and of themselves . . . .” Id. at 348−49.
      HPP is correct that an isolated comment generally cannot support a Title
VII sexual harassment claim. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993).   Actionable sexual harassment requires that the alleged unlawful
action be so “‘severe or pervasive’” as “‘to alter the conditions of the victim’s
employment and create an abusive working environment.’”             Id. (quoting
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)); see also Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998) (explaining that “offhand
comments[] and isolated incidents” are not enough to violate Title VII).
      Even so, a viable Title VII retaliation claim does not necessarily depend
on a viable harassment or discrimination claim: “[O]pposition clause claims
grounded in isolated comments are not always doomed” to dismissal. Rite Way,
819 F.3d at 243. We affirmed summary judgment for a defendant employer on
a plaintiff’s sexual harassment claim where the only basis for the claim was
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“an offensive joke concerning condoms which [her supervisor] told in her
presence.” Long, 88 F.3d at 308−09. We held that the district court erred,
however, in granting summary judgment on the plaintiff’s retaliation claim,
where the plaintiff reported the supervisor’s conduct and was later discharged.
Id. at 305−09.
      Another case involved a plaintiff who was a witness of her supervisor’s
alleged harassment of another employee and was later terminated. Rite Way,
819 F.3d at 238−39. The alleged harassment consisted of two incidents: the
plaintiff saw the supervisor pretend to smack the employee’s bottom and say,
“ooh wee,” and the plaintiff heard the supervisor indicate to the employee that
he was staring at her bottom. Id. at 238. We concluded that the question of
whether the plaintiff reasonably believed the supervisor’s conduct violated
Title VII should go to a jury. Id. at 243−44. We distinguished the facts in Rite
Way from other cases where isolated incidents could not form the basis of a
retaliation claim by noting that the offending conduct came from a supervisor
and was “directed at a specific fellow employee.” Id. at 243.
      Here, we are reviewing a Rule 12(b)(6) dismissal, not a Rule 56 summary
judgment.    HPP relies on Turner, which involved a comment about an
amorphous group of children that is much different in severity from the
physician-supervisor’s alleged sexual comment, which was aimed directly at
the plaintiff. See Rite Way, 819 F.3d at 243. We do not require an employee to
be “‘an expert’” in Title VII law, though. Id. at 242 n.5 (quoting Boyer-Liberto
v. Fontainebleau Corp., 786 F.3d 264, 290 (4th Cir. 2015) (en banc)). There is
enough factual information in Cuellar’s complaint and EEOC charge to allow
her retaliation claim to survive HPP’s motion to dismiss.
      We REVERSE and REMAND for further proceedings. Whether Cuellar
may amend her complaint may be considered on remand.


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