Opinion
SA-22-CV-529-OLG (HJB)
05-24-2023
KATHLEEN GIRAMUR, Plaintiff, v. HONORABLE CHRISTINE E. WORMUTH, Secretary of the Army d/b/a Brooke Army Medical Center, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad United States Magistrate Judge
To the Honorable United States District Judge Orlando L. Garcia:
This Report and Recommendation concerns Defendant's Renewed Motion to Dismiss. (Docket Entry 9.) This case has been referred to the undersigned for consideration of pretrial matters pursuant to 28 U.S.C. § 636(b). (See Docket Entry 13.) For the reasons set out below, I recommend that Defendant's Renewed Motion to Dismiss (Docket Entry 9) be GRANTED IN PART and DENIED IN PART.
I. Jurisdiction.
Plaintiff's suit presents claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and the Rehabilitation Act, 29 U.S.C. § 794. (Docket Entry 8.) The Court has original jurisdiction over federal claims pursuant to 28 U.S.C. § 1331. I have authority to issue this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
II. Background.
The following facts are taken from Plaintiff's First Amended Complaint, which the Court must take as true for purposes of this motion before it. See Arnold v. Williams, 979 F.3d 262, 266 (5th Cir. 2020).
Plaintiff was hired as a Gastroenterology Nurse Practitioner for the Brooke Army Medical Center on July 23, 2018. (Docket Entry 8, at ¶ 9.) Approximately two months after being hired, Plaintiff “began to experience sexual harassment and discrimination from fellow colleagues.” (Id. at ¶ 10.) She addressed her concerns about the stressful work environment with Dr. Allyson Cochet and advised Dr. Cochet she feared for her safety. (Id. at ¶ 11.)
On three separate occasions within one week in December 2018, Plaintiff found explicit drawings on the grease board in one of her exam rooms. (Docket Entry 8, at ¶¶ 12-14.) One drawing depicted an erect male penis and another depicted a snowman with an erection. (Id.) The complaint does not allege who was responsible for the drawings. (Id.) After each incident, Plaintiff filed a formal complaint with her supervisors, Dr. Cochet and Dr. Carlos Angueira,but neither addressed the issue. (Id.) During this period, Plaintiff suffered from increased anxiety and depression. (Id. at ¶ 15.)
Dr. Angueira's name is spelled differently throughout the amended complaint. (Compare Docket Entry 8, at ¶¶ 12-13 (“Angueira”) with id. at ¶¶ 19-22 (“Anguiera”)) This Report and Recommendation utilizes the first spelling.
On January 9, 2019, Plaintiff filed a sexual harassment complaint “alleging no help from employer or management regarding the sexual drawings being left on her exam room board.” (Docket Entry 8, at ¶ 17.) She also reported additional complaints to her supervisors; she advised Dr. Cochet and Dr. Angueira “that she felt the work environment was hostile and unsafe, and it made it extremely difficult to perform her duties.” (Id. at ¶ 21.) She also advised them of her increasing anxiety and depression. (Id. at ¶ 15.) Plaintiff felt unsafe staying late in the evenings to finish medical charting. (Id. at 21.) Dr. Cochet and Angueira “were aware of Plaintiff's sexual harassment but failed to protect [her] or rectify the situation.” (Id. at ¶ 19.)
On January 24, 2019, Plaintiff was terminated from her position as a Nurse Practitioner. (Docket Entry 8, at ¶ 23.) She filed a complaint with the Army EEO office on February 13, 2019. (Id.)
Plaintiff initiated the instant suit against Defendant Christine Wormuth, Secretary of the Army, on May 24, 2022, alleging claims for sex/gender discrimination and hostile work environment under Title VII, as well as disability discrimination under the Americans with Disabilities Act (“ADA”). (Docket Entry 1, at 5-7.) Plaintiff then amended her complaint to remove the ADA claim and instead include a disability discrimination claim under the Rehabilitation Act; she also added a Title VII retaliation claim. (Docket Entry 8, at 68.) Defendant has moved to dismiss all claims for failure to state a plausible claim for relief pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket Entry 9.) Plaintiff has responded to the motion, and Defendant has replied. (Docket Entries 10, 11.)
III. Legal Standard.
Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a cause of action in a complaint when it fails “to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6).
To survive a motion to dismiss [under 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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.Henley v. Biloxi H.M.A., L.L.C., 48 F.4th 350, 353 (5th Cir. 2022) (citation omitted). “While the court must accept the facts in the complaint as true, it will ‘not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.'” Arnold, 979 F.3d at 266 (citation omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Firefighters' Ret. Sys. v. Grant Thornton, L.L.P., 894 F.3d 665, 669 (5th Cir. 2018) (citation omitted).
In deciding a Rule 12(b)(6) motion to dismiss, “[t]he court's review is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Allen v. Vertafore, Inc., 28 F.4th 613, 616 (5th Cir. 2022) (citation omitted).
IV. Analysis.
Defendant seeks to dismiss each of Plaintiff's claims for failure to state a claim for relief. This Report and Recommendation first addresses the discrimination claims, then the hostile work environment claim, and finally the retaliation claim.
A. Plaintiff's Discrimination Claims.
Plaintiff alleges a sex/gender discrimination claim under Title VII and a disability discrimination claim under the Rehabilitation Act. (Docket Entry 8, at 67.) Defendant seeks to dismiss both claims for failure to state a claim for relief because Plaintiff has alleged no facts which would raise an inference that she was terminated because of her gender or her disability. (Docket Entry 9, at 3, 5.)
At the pleading stage, discrimination claims are governed by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), rather than the familiar burden-shifting evidentiary standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 599 (5th Cir. 2021). Under Swierkiewicz, “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.” Olivarez, 997 F.3d at 599600 (citation and emphasis omitted). Nevertheless, when a plaintiff's discrimination claim depends on circumstantial evidence, as it does here, the plaintiff “will ‘ultimately have to show' that [s]he can satisfy the McDonnell Douglas framework.” Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019) (citation omitted). To this end, it is “helpful to reference [the McDonnell Douglas] framework when the court is determining whether a plaintiff has plausibly alleged the ultimate elements of the disparate treatment claim. Olivarez, 997 F.3d at 600 (citation omitted).
Under McDonnell Douglas, a court asks whether the plaintiff has established a prima facie case of discrimination, whether the defendant has offered a legitimate, non-discriminatory reason for the challenged conduct, and whether the plaintiff has established that the proffered reason was pretext for unlawful discrimination. See Sanders v. Christwood, 970 F.3d 558, 561-62 (5th Cir. 2020).
Under McDonnell Douglas, a plaintiff is first required to establish a prima facie case of discrimination by providing evidence “that she (1) is a member of a protected class; (2) was qualified for her position; (3) was subject to an adverse employment action; and (4) was replaced by someone outside the protected class, or, in the case of disparate treatment, shows that others similarly situated were treated more favorably.” Outley v. Luke & Assocs., Inc., 840 F.3d 212, 216 (5th Cir. 2016) (citation omitted).
In this case, Plaintiff has failed to plead sufficient facts indicating less favorable treatment than any other “similarly situated” male employee. Plaintiff alleges that she was “treated differently from other employees of Brooke Army Medical Center because of her sex because male employees were not terminated for similar performance/conduct” as her. (Docket Entry 8, at ¶ 30.) Plaintiff, however, does not provide any factual allegations to support this conclusory statement; the amended complaint contains no allegations regarding the basis for her termination or the “similar performance/conduct” of male employees. Thus, Plaintiff's amended complaint contains no factual allegations to infer she was fired because of her gender.
For similar reasons, Plaintiff's disability discrimination claim is likewise insufficient. A claim of discrimination under the Rehabilitation Act requires a plaintiff to allege that she has a disability; that she is “being excluded from participation in, or being denied benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise being discriminated against by the public entity;” and that such exclusion, denial of benefits, or discrimination is because of her disability. T.O. v. Fort Bend Indep. Sch. Dist., 2 F.4th 407, 417 (5th Cir. 2021).
Plaintiff alleges that she suffers from depression and anxiety and that Defendant regarded her as having a disability. (Docket Entry 8, at ¶¶ 36-37.) The amended complaint, however, contains no allegations that connect her termination to her alleged disability such that the Court would be able to infer the Defendant is liable for disability discrimination. See Olivarez, 997 F.3d at 601 (“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.”).
For these reasons, Plaintiff's sex/gender discrimination and disability discrimination claims should be dismissed without prejudice to allow her an opportunity to plead additional facts to support her claims.
B. Plaintiff's Hostile Work Environment Claim.
Defendant argues that Plaintiff has failed to state a claim for relief for hostile work environment because she “fails to establish that she was subjected to unwelcome sexual harassment, that the harassment was based on sex, and that it affected a term, condition, or privilege of her employment.” (Docket Entry 9, at 7.)
To plead a hostile work environment claim, a plaintiff must allege (1) that she belongs to a protected class; (2) that she was subject to unwelcome harassment; (3) that the harassment was based on sex; (4) that the harassment affected a “term, condition, or privilege” of employment; and (5) that “her employer knew or should have known of the harassment and failed to take prompt remedial action.” Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005) (citation omitted). To constitute a hostile work environment affecting a term, condition, or privilege of employment, the harassing conduct must be “sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Wantou v. Wal-Mart Stores Tex., L.L.C., 23 F.4th 422, 433 (5th Cir. 2022) (citation omitted).
Plaintiff alleges that she “began to experience sexual harassment and discrimination” in September 2018. (Docket Entry 8, at ¶ 10.) This statement is entirely conclusory; Plaintiff alleges no facts in support of it. Plaintiff does, however, detail three occasions within one week in December 2018, when sexually explicit pictures were drawn on her white board. (Id. at ¶¶ 1214.) Standing alone, these anonymous drawings, while offensive, cannot support a harassment claim. See Wantou, 23 F.4th at 433 (“[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.”). Considered in conjunction with earlier “sexual harassment and discrimination,” the offensive drawings may be enough to satisfy Plaintiff's burden. See id. (“Frequent incidents of harassment, though not severe, can reach the level of ‘pervasive,' ... such that a hostile work environment exists.”). But Plaintiff's amended complaint provides no information as to what the earlier alleged “sexual harassment and discrimination” entailed.
While detailed allegations are not required, a complaint must provide enough factual allegations as to raise a right to relief above the speculative, conclusory level. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see, e.g., Moody v. Region VI Cmty. Mental Health Comm'n, No. 4:21-CV-50-M-JMV, 2022 WL 1151266, at *2 (N.D. Miss. Apr. 18, 2022) (“[Plaintiff's] conclusory allegation that she has been the subject of sexual harassment discrimination is insufficient to establish a claim when unsupported by any factual evidence.”). As currently pled, Plaintiff's claim is not sufficient.
Accordingly, Plaintiff's hostile work environment claim should be dismissed without prejudice to allow her an opportunity to plead additional facts to establish her claim.
C. Plaintiff's Title VII Retaliation Claim.
Defendant also seeks dismissal of Plaintiff's retaliation claim. A litigant who alleges retaliation arising from allegations of discrimination in the workplace must establish (1) that she engaged in protected activity; (2) that the employer took adverse action against her; and (3) that a causal connection exists between the protected activity and the adverse action. Zamora v. City of Houston, 798 F.3d 326, 331 (5th Cir. 2015) (citation omitted).
As with a Title VII discrimination claim, a plaintiff is not required to make out a prima facie case of retaliation to survive a Rule 12(b)(6) motion to dismiss. Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021). Rather, she only needs to plausibly allege facts “going to the ultimate elements of the claim.” Id.
Here, the parties dispute whether Plaintiff has adequately alleged causation. To do so, Plaintiff must allege facts permitting a reasonable inference that the adverse employment action occurred because of her protected activity. Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021). Temporal proximity between a protected act and adverse employment action is one way a causal connection may be shown. Garvin v. Sw. Corr., L.L.C., 391 F.Supp.3d 640, 653 (N.D. Tex. 2019) (citing Blasingame v. Eli Lilly & Co., 2013 WL 5707324, at *15 (S.D. Tex. Oct. 18, 2013)). “[T]he protected act and the adverse employment action must be very close in time to establish causation by timing alone.” Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 578 (5th Cir. 2020) (citation omitted); see Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 742 (5th Cir. 2017) (finding that three-year period was “not the ‘very close in time' connection [required] ‘to establish causation by timing alone'”) (citation omitted).
Plaintiff alleges that she filed a sexual harassment complaint on January 9, 2019, and that she was terminated shortly thereafter on January 24, 2019. (Docket Entry 8, at ¶¶ 17, 23.) Defendant argues that temporal proximity alone is not enough to support causation because Plaintiff does not specifically allege that the decisionmaker who terminated her knew of her complaints. (Docket Entry 11, at 3.)
Defendant sets the bar too high at this stage in the proceedings. At the pleading stage, a plaintiff must do no more than “allege facts permitting at least an inference of her employer's knowledge of her protected conduct in order to establish the required causal link between her conduct and the alleged retaliation.” Wright, 990 F.3d at 434. Here, Plaintiff alleges that she complained to her supervisors on multiple occasions. (Docket Entry 8, at ¶¶ 11-13, 18, 21.) Such allegations, combined with the extremely close temporal proximity between her complaints and her termination, is enough to support an inference of knowledge at the pleading stage. See Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (explaining that at the pleading stage, plaintiff's complaint must simply contain “enough facts to raise a reasonable expectation that discovery will reveal” that the elements of the claim existed) (quoting Twombly, 550 U.S. at 556).
The cases relied upon by Defendant to support its argument address the proof needed at the summary judgment stage, not the allegations required at the pleading stage. (See Docket Entry 11, at 2 (citing Porter v. Houma Terrebonne Hous. Auth. Bd. Of Comm'rs, 810 F.3d 940, 948 (5th Cir. 2015), and Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)).
Accordingly, Defendant's motion should be denied as to Plaintiff's retaliation claim, and the claim should be allowed to proceed as currently pled.
V. Conclusion and Recommendation.
Based on the foregoing, I recommend that Defendant's Renewed Motion to Dismiss (Docket Entry 9) be GRANTED IN PART and DENIED IN PART. As to Plaintiff's gender discrimination, disability discrimination, and hostile work environment claims, Defendant's motion should be GRANTED, Plaintiff's claims should be DISMISSED WITHOUT PREJUDICE, and Plaintiff should be given an opportunity to amend her complaint. As to Plaintiff's retaliation claim, Defendant's motion should be DENIED.
VI. Instructions for Service and Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested.
Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The party shall file the objections with the clerk of the court and serve the objections on all other parties. Absent leave of Court, objections are limited to twenty (20) pages in length. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections.
A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).