Opinion
SA-22-CV-529-OLG (HJB)
12-12-2023
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 Motion to Dismiss Plaintiff's Second Amended Complaint (“the Motion”). (Docket Entry 27.) Pretrial matters have been referred to the undersigned for consideration. (Docket Entry 13.) See 28 U.S.C. § 636(b). For the reasons set out below, I recommend that the motion 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 (“Rehab Act”). (Docket Entry 25.) The Court has original jurisdiction over this matter 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).
In this section, facts in Plaintiff's Second Amended Complaint are taken as true, and plausible inferences made in her favor. See United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 727 F.3d 343, 346 (5th Cir. 2013).
Plaintiff Kathleen Giramur was hired as a Gastroenterology Nurse Practitioner for the Brooke Army Medical Center on July 23, 2018. (Docket Entry 25, at ¶ 9.) In September of that year, she was diagnosed with depression and anxiety. (Id. at ¶ 10.) Around that same time, Giramur informed one of her supervisors, Dr. Allyson Cochet, that she was suffering from some unspecified musculoskeletal and autoimmune condition, and that she was experiencing some form of sexual harassment and discrimination by her colleagues. (Id. at ¶¶ 11-12.) She told Dr. Cochet that she did not feel safe at work. (Id. at ¶ 13.)
On three separate occasions within one week in December 2018, Giramur found explicit drawings on the grease board in one of her patient exam rooms. (Id. at ¶¶ 15-17.) One drawing depicted an erect penis and another depicted a snowman with an erection. (Id.) After each incident, Giramur filed a formal complaint with Dr. Cochet and another supervisor, Dr. Carlos Angueira, but neither addressed the issue. (Id.)
On January 9, 2019, Giramur filed a sexual harassment complaint “alleging no help from employer or management regarding the sexual drawings being left on her exam room board.” (Id. at ¶ 20.) She also reported additional complaints to her supervisors; she advised Drs. Cochet and Angueira “that she felt the work environment was hostile and unsafe,” which “made it extremely difficult to perform her duties.” (Id. at ¶ 24.) Giramur told them she “felt unsafe staying late in the evenings.” (Id. at ¶ 24.) She also alleges that she endured “sexual innuendos” and “a predominately male-exclusive culture,” but that “neither of her superiors acted upon her complaints.” (Id. at ¶ 25.)
Giramur was fired on January 24, 2019. (Id. at ¶ 28.) The asserted grounds for her termination were for “using profanity in an open patient care area” and being “uncooperative with her coworkers in providing or coordinating patient care.” (Id. at ¶ 27.) The profanity rationale ostensibly referred to an incident on November 29, 2018, when Giramur instructed another employee, Shauntay McDowell, to bring her a can of deodorizer spray. (Id. at ¶ 14.) In front of a patient, McDowell told Giramur to “look for it herself.” (Id.) As Giramur left the room, she “muttered ‘forget you.'” (Id.) Presumably, “forget” was mistaken for “f-k.” In any event, Giramur alleges “that other male practitioners have used profane language in the workplaces” without losing their jobs. (Id. at ¶ 35.)
The “uncooperative” rationale for Giramur's termination ostensibly refers to an incident on January 3, 2019, when a front-office employee told Dr. Cochet that “a walk-in patient waited ‘an excessive amount of time, about 2 hours' for a fibroscan,” after Giramur advised she was busy and that they “needed to find somebody else to do it.” (Id. ¶ 26.) Giramur alleges that it “was common practice” for “male GI nurse practitioners and physicians [to] have . . . colleagues in the GI clinic perform fibroscan[s] for their patients when their schedules were busy.” (Id. at ¶ 35.)
Giramur filed suit against Defendant Christine E. Wormuth, Acting Secretary of the Army, doing business as Brooke Army Medical Center. (Docket Entry 25, at ¶ 2.) She asserts five claims in her Second Amended Complaint: (1) sex discrimination under Title VII; (2) disability discrimination under the Rehab Act; (3) failure to accommodate under the Rehab Act; (4) a hostile work-environment under Title VII; and (5) retaliation under Title VII. (Id. at ¶¶ 31-58.) Defendant now moves to dismiss all but the failure-to-accommodate claim under Federal Rule of Civil Procedure 12(b)(6). (Docket Entry 27.) Giramur has responded to the Motion, and Defendant has replied. (Docket Entries 28 and 29.)
III. Legal Standard.
The Court may dismiss 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). When analyzing a motion to dismiss for failure to state a claim, the Court accepts “all well pleaded facts as true, viewing them in the light most favorable to the plaintiff.” United States ex rel. Vavra, 727 F.3d at 34. A motion to dismiss under Rule 12(b)(6) “is viewed with disfavor and rarely granted.” Leal v. McHugh, 731 F.3d 405, 410 (5th Cir. 2013).
To survive a motion to dismiss under Rule 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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. In short, the “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). This “does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal [pertinent] evidence....” Id.
Although facts alleged in the complaint are presumed to be true, the Court does not extend this presumption of veracity to “conclusory allegations, unwarranted factual inferences, or legal conclusions.” Arnold v. Williams, 979 F.3d 262, 266 (5th Cir. 2020) (citations omitted). Indeed, “[t]hreadbare 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) (quoting Iqbal, 556 U.S. at 678).
IV. Analysis.
As noted above, Defendant does not move to dismiss (or even acknowledge) Giramur's failure-to-accommodate claim. Accordingly, this Report and Recommendation does not assess Giramur's pleadings with respect to that claim. Her remaining claims are addressed below.
A. Giramur's Discrimination Claims.
Giramur alleges sex discrimination under Title VII and disability discrimination under the Rehab Act. (Docket Entry 25, at 7-9.) Defendant seeks to dismiss both claims on the ground that Giramur alleged no facts from which the Court may reasonably infer that she was terminated because of her sex or disability. (Docket Entry 27, at 6-8.)
a. Disparate treatment based on sex under Title VII.
“Title VII prohibits both intentional discrimination (known as ‘disparate treatment') as well as . . . 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). Giramur's claim is one of disparate treatment. (See Docket Entry 25, at ¶ 35.) The elements of a disparate treatment claim under Title VII are: (1) an adverse employment action, (2) taken against a plaintiff because of her protected status.” Olivarez v. T-mobile USA, Inc., 997 F.3d 595, 599600 (5th Cir. 2021) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). “Because of” means “but-for causation.” Bostock v. Clayton Cnty., Ga., 140 S.Ct. 1731, 1739 (2020). Thus, a disparate treatment plaintiff must ultimately establish “that the defendant had a discriminatory intent or motive” for taking the adverse employment action. Ricci, 557 U.S. at 577 (citation omitted); see Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003) (“Liability in a disparatetreatment case depends on whether the protected trait . . . actually motivated the employer's decision.”) (citation and internal quotations omitted).
”[W]hen a complaint purports to allege a case of circumstantial evidence of discrimination,” as Giramur's complaint does, “it may be helpful to refer to McDonnell Douglas to understand whether a plaintiff has sufficiently pleaded an adverse employment action taken ‘because of' h[er] protected status protected status as required under Swierkiewicz ” Olivarez, 997 F.3d at 600 (citing Cicalese v. Univ. of Texas Med. Branch, 924 F.3d 762, 767 (2019)); see generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Thus, the Court refers to that framework to determine whether Giramur “has plausibly alleged the ultimate elements of . . . [her] disparate treatment claim.” Olivarez, 997 F.3d at 600. Following the McDonnell Douglas framework, Giramur must plead sufficient factual allegations to permit the reasonable inference “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) . . . [that others] outside the protected class . . . [but] similarly situated were treated more favorably.” Outley v. Luke & Assocs., Inc., 840 F.3d 212, 216 (5th Cir. 2016) (citation omitted) (identifying elements of prima facie case of disparate treatment in summary judgment context).
Under McDonell Douglas, the 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 is merely a pretext for unlawful discrimination. See Sanders v. Christwood, 970 F.3d 558, 561-62 (5th Cir. 2020).
Giramur has failed to plead sufficient non-conclusory facts to suggest that she was treated less favorably than any similarly situated male employee. Plaintiff generally alleges that she was “treated differently” than her male colleagues because they also “used profane language in the workplace” and delegated their fibroscan procedures to others “when their schedules were busy,” but were not terminated. (Docket Entry 25, at 7.) However, Giramur alleges no specific instance of any male colleague actually using profanity in the workplace or delegating their fibroscan procedures to another colleague. She merely asserts that it is so, in the abstract. Such “a bare assertion . . . will not suffice.” Twombly, 550 U.S. at 556. Thus, Giramur has failed to allege a plausible claim for sex-based discrimination. See Firefighters' Ret. Sys., 894 F.3d at 669 (“[C]onclusory allegations . . . will not prevent a motion to dismiss.”).
b. Disability discrimination under the Rehab Act.
The Rehab Act provides “the exclusive remedy for a federal employee alleging disabilitybased discrimination.” Tanzy v. Mayorkas, No. 3:20-CV-3161-X-BH, 2021 WL 3625076, at *3 (N.D. Tex. July 20, 2021) (quoting Dark v. Potter, 293 Fed.Appx. 254, 258 (5th Cir. 2008)), report and recommendation adopted, No. 3:20-CV-03161-X-BH, 2021 WL 3618109 (N.D. Tex. Aug. 16, 2021). As with her sex discrimination claims, the Court properly considers the prima facie elements of Giramur's disability discrimination claim in evaluation the plausibility of her claim at this stage. See Dark, 293 Fed.Appx. at 258; Tanzy, 2021 WL 3625076, at *3. Thus, to plausibly state a claim of disability-based employment discrimination under the Rehab Act, Giramur must allege sufficient factual allegations from which the Court can reasonably infer that (1) she has a disability; (2) she was otherwise qualified for her job; (3) she worked for an executive agency or an entity receiving federal financial assistance; and (4) an adverse employment decision was made solely by reason of her disability. See 29 U.S.C.§ 794(a); T.O. v. Fort Bend Indep. Sch. Dist., 2 F.4th 407, 417 (5th Cir. 2021), cert. denied, 142 S.Ct. 2811 (2022), reh'g denied, 143 S.Ct. 60 (2022); Shaikh v. Tex. A&M Univ. Coll. Of Med., 739 Fed.Appx. 215, 219 (5th Cir. 2018); Tanzy, 2021 WL 3625076, at *3.
With regard to the allegation of disability, to plausibly state a claim under the Rehab Act, Giramur “may not merely allege that she suffers from multiple impairments; instead, she must allege that those impairments are in fact disabling because they substantially limit a major life activity.” Wade v. Montgomery Cnty., Tex., No. 4:17-CV-1040, 2017 WL 7058237, at *6 (S.D. Tex. Dec. 6, 2017) (citing Hale v. King, 642 F.3d 492, 501-02 (5th Cir. 2011)), report and recommendation adopted, No. 4:17-CV-1040, 2018 WL 580642 (S.D. Tex. Jan. 25, 2018). The Rehab Act's implementing regulations provide a non-exhaustive list of major life activities, including “caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 45 C.F.R. § 84.3(j)(2)(ii) (2005).
Giramur alleges that she suffers from “depression and anxiety [and] musculoskeletal and autoimmune condition[s],” and that she told Dr. Cochet about these conditions. (Docket Entry 25, at ¶¶ 41-42.) Defendant argues that Giramur failed to allege how her asserted impairments substantially limit one or more of her major life activities. (Docket Entry 27, at 7.) However, Giramur alleges that these conditions caused her to experience “physical pain[] and mental/emotional stress” at work, and to “feel [un]safe in her work environment”-specifically, “unsafe staying late in the evenings to finish medical charting.” (Id. at ¶¶ 24, 42.) That is to say, Giramur alleged that her impairment contributed to a negative impact on her quality of life while working: a major life activity.
“To be substantially limited in the major life activity of working,” however, “[i]t is not enough” for Giramur to plead factual allegations from which the Court could infer that she may “be substantially limited in h[er] ability to perform a single job or narrow range of jobs”; instead, Giramur “must be unable to work in a broad range or category of jobs.” Kurth v. Gonzales, 472 F.Supp.2d 874, 880 (E.D. Tex. 2007). Similarly, is it not enough for her to allege that her impairment made working in a particular job stressful or unpleasant-which is precisely what she alleges here. Giramur does not allege that she was actually unable to perform her job as a result of her impairments. She does not even allege that her impairments caused her to refrain from staying late to finish her work, though she felt unsafe doing so. Thus, having failed to plausibly allege that she is disabled under the Rehab Act, Giramur has failed to allege a plausible claim of disability discrimination.
In any event, even if she had plausibly alleged a disability under the statute, Giramur failed to plausibly allege that her disability was the only reason for her termination. “Unlike Title VII cases and ADA claims where plaintiffs can recover based on ‘mixed motives,' the Rehabilitation Act requires that the discrimination be based solely on an employee's disability.” Kurth, 472 F.Supp.2d at 879 (citing Soledad v U.S. Dept of Treasury, 304 F.3d 500, 504-05 (5th Cir. 2002) (“Liability can only be found when the discrimination was ‘solely by reason of her or his disability,' not when it is simply a ‘motivating factor.'”)). Giramur alleges that she was discriminated against because “non-disabled employees were not terminated for similar performance/conduct,” namely, having their colleagues “perform fibroscan[s] for their patients when their schedules were busy.” (Id. at ¶ 45.) However, Giramur alleges no instances when one or more of her non-disabled peers were actually spared termination after delegating their fibroscans under similar circumstances. In lieu of such allegations, Giramur offers her ipse dixit that “[t]his was common practice.” (Id.) Missing, are any non-conclusory allegations that connect Giramur's termination to her alleged disabilities such that the Court could reasonably infer that Defendant fired her “solely by reason of” her disability. See 29 U.S.C.A. § 794(a); 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.”). Thus, having failed to plausibly allege that she was terminated for no other reason than her asserted disabilities, Giramur has failed to allege a plausible claim of disability discrimination.
B. Giramur's Hostile Work Environment Claim.
“Title VII also prohibits sexual harassment as a form of employment discrimination.” Wallace v. Performance Contractors, Inc., 57 F.4th 209, 220 (5th Cir. 2023) (citations omitted). “The creation of a hostile work environment through harassment” is one such form of proscribed sex discrimination. EEOC v. Boh Bros. Const. Co., LLC, 731 F.3d 444, 453 (5th Cir. 2013) (en banc). “A hostile work environment claim consists of five elements: (1) the plaintiff belongs to a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex: (4) the harassment affected a term, condition, or privilege of her employment; and (5) her employer knew or should have known of the harassment and failed to take prompt remedial action.” Wyly v. W.F.K.R., Inc., 1 F.Supp.3d 510, 513 (W.D. Tex. 2014) (quoting Hockman v. Westward Commc'ns, LLC, 407 F.3d 317, 325 (5th Cir. 2004)).
To affect 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). “Whether an environment is hostile or abusive depends on a totality of circumstances, focusing on factors such as the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee's work performance.” Saketkoo v. Adm'rs. of Tulane Educ. Fund, 31 F.4th 990, 1003 (5th Cir. 2022).
Defendant argues that Giramur's second amended complaint “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 27, at 9.) To support her claim, Giramur points to the three instances in December of 2018 when she found obscene drawings on a grease board in her examination room. (Docket Entry 25, at 10.) She complains that her superiors “continuously failed to rectify the matter.” (Id. at 10.)
“[A] single incident of harassment, if sufficiently severe, could give rise to a viable Title VII claim as well as a continuous pattern of much less severe incidents of harassment.” E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007). Here, as the Court already explained in its prior report and recommendation (see Docket Entry 20, at 7), three isolated, offensive drawings, without more, are neither severe nor pervasive enough to support a hostile work environment claim. See, e.g., 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.”); Brooks v. Firestone Polymers, L.L.C., 640 Fed.Appx. 393, 399 (5th Cir. 2016) (finding racially offensive drawings in bathroom stalls were insufficiently severe or pervasive because they were “isolated incidents,” “did not involve physical threats,” and ostensibly did not “interfere” with the plaintiff's work). Accordingly, Giramur has failed to plead sufficient factual allegations to state a plausible hostile work environment claim.
C. Dismissal with Prejudice.
The Court has the discretion to dismiss without prejudice and permit Giramur to amend her complaint a third time. See U.S. ex rel. Willard v. Human Health Plan of Tex. Inc., 336 F.3d 375, 387 (5th Cir. 2003). However, leave to amend should not be granted when a plaintiff has already pleaded her “best case.” Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009). Defendant opposes further amendment, noting that this is Giramur's third complaint in 18 months, and that she “continues to rely on threadbare pleadings.” (Docket Entry 27, at 12.) The Court has already dismissed Giramur's discrimination and hostile work environment claims once as inadequately pleaded. (See Docket Entry 20.) In doing so, the Court apprised Giramur of the deficiencies in her first amended complaint and gave her an opportunity to cure them in a second amended complaint. (See id.) Thus, Giramur has already pleaded her best case; granting further leave to amend would be inappropriate. See Wiggins v. La. State Univ.-Health Care Servs. Div., 710 Fed.Appx. 625, 627 (5th Cir. 2017) (“A plaintiff has pleaded her best case after she is apprised of the insufficiency of her complaint.”) (citation and internal quotation omitted). Accordingly, the Court should dismiss Giramur's discrimination and hostile work environment claims with prejudice.
D. Giramur's Retaliation Claim.
Finally, Defendant seeks dismissal of Giramur'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).
The parties dispute whether Giramur has alleged sufficient facts to plausibly support the causation element of her retaliation claim. To do so, Giramur must allege facts from which the Court may reasonably infer that the adverse employment action-i.e., her termination-occurred because of her protected activity. Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021). Again, “because of” means “but-for causation.” Bostock, 140 S.Ct. at 1739. Thus, to plausibly state a retaliation claim, Giramur must plead sufficient factual allegations to permit the Court to reasonably infer that Defendant would not have fired her had she not complained about sexual harassment and a hostile work environment on January 9, 2019.
To meet her burden, Giramur alleges that she was fired on January 24, 2019, “less than twenty (20) days after . . . engag[ing] in protected activity.” (Docket Entry 25, at 11.) Temporal proximity between protected activity and the adverse employment action is one way that 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)). But “the 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 three years was “not the ‘very close in time' connection [required] ‘to establish causation by timing alone'”) (citation omitted). Giramur's termination was certainly “very close” in time to her complaint of sexual harassment and hostile work environment: a mere 15 days apart.
Defendant argues, however, that temporal proximity alone is insufficient to plausibly support the causation element of Giramur's retaliation claim because she has not identified anyone “who received her [January 9, 2019] complaint” or alleged “what their relationship would be to her supervision who it would be reasonable to infer terminated her.” (Docket Entry 29, at 2.) Defendant argues that the relevant the proximity is “between an employer's knowledge of protected activity and an adverse employment action.” (Docket Entry 27, at 10 (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).) After all, “an employer that has no knowledge of an employee's protected activity cannot retaliate against the employee for that activity.” (Docket Entry 27, at 11 (quoting Royall v. Enter. Prod. Co., No. 21-40119, 2022 WL 263404, at *4 (5th Cir. Jan. 26, 2022) (affirming grant of summary judgment).)
Defendant is certainly correct that the relevant proximity is between a decisionmaker's knowledge of Giramur's January 9, 2019, complaint and her January 24, 2019, termination. Nevertheless, the Court previously found that Defendant “set[] the bar too high” at this early, pleading stage, by demanding that Giramur identify a decisionmaker alleged to have known of her complaint before her termination. (Docket Entry 20, at 9.) The Court emphasized that Giramur was only required to “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 protected conduct and the alleged retaliation.” (Id. (quoting Wright, 990 F.3d at 434).)
Defendant now asks the Court to reconsider its prior ruling and recommend dismissal of Giramur's retaliation claim because she failed to plead factual allegations as to who received her complaint and, thus, how Defendant can be said to have known about her protected activity in advance of her termination. (Docket Entry 27, at 11.) To support its position, Defendant directs the Court's attention to a recent memorandum opinion and order in in Smith v. Kendall, No. SA-21-CV-1154-JKP, 2023 WL 4552763 (W.D. Tex. July 14, 2023), reconsideration denied, No. SA-21-CV-1154-JKP, 2023 WL 5835187 (W.D. Tex. Sept. 8, 2023). In that case, the district court granted a motion to dismiss a retaliation claim where the plaintiff relied on proximity between her protected activity and her termination, but failed to identify an actual decisionmaker who knew of the protected activity. Id. at *8 (citing Alvarado v. Tex. Health & Hum. Servs. Comm'n, No. SA-19-CV-106-JKP, 2022 WL 707225, at *5 (W.D. Tex. Mar. 9, 2022)). According to the Smith court, “the absence of any allegation that Defendant had the requisite knowledge of . . . protected activity ‘prevents use of temporal proximity to show a causal link....'” Id. (citing Alvarado, 2022 WL 707225, at *5). The decision has been appealed and is currently pending before the Fifth Circuit Court of Appeals: Smith v. Kendall, No. 23-50713.
Giramur responds by directing the Court's attention to the memorandum opinion and order from the Southern District of Texas in Briceno-Belmontes v. Coastal Bend Coll., No. 2:20-CV-00114, 2022 WL 673854 (S.D. Tex. Mar. 5, 2022). There the district court denied a motion to dismiss a retaliation claim based on proximity between the termination and the plaintiff's protected activity, despite the absence of any allegations that the decisionmaker was actually aware of the plaintiff's protected activity. Id. at *6. In siding with the plaintiff, the Briceno-Belmontes court emphasized that “complaining . . . to the human resources manager, the student services director, the dean of student services, and the site director [wa]s enough to infer that the employer had knowledge of the employee's protected activity-even though Briceno-Belmontes d[id] not state specifically who fired her.” Id. at *7. After all, the Briceno-Belmontes court concluded, “pleading enough facts to state a plausible claim of retaliation ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence' sufficient to state a claim.” Id. (quoting Twombly, 550 U.S. at 556).
The Court agrees with the Briceno-Belmontes court's reasoning and finds that the same conclusion is warranted here. Reading the second amended complaint in the light most favorable to Giramur, she complained of sexual harassment and a hostile work environment to her “first and second level supervisors,” Dr. Cochet and Dr. Angueira, Brook Army Medical Center's “Assistant Chief of Gastroenterology” and “Chief of Gastroenterology,” respectively. (Id.) Though she does not allege who fired her, complaining to her first and second-level supervisors-the two heads of her specific department-is enough to permit the reasonable inference that Defendant knew about Giramur's protected activity. See Briceno-Belmontes, 2022 WL 673854, at *7. Thus, after reconsideration, the Court again finds that Giramur has pleaded a plausible retaliation claim.
V. Conclusion and Recommendation.
For the foregoing reasons, I recommend that Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint (Docket Entry 27) be GRANTED IN PART and DENIED IN PART. The motion should be DENIED as to Giramur's retaliation claim. It should be GRANTED as to her sex discrimination, disability discrimination, and hostile work environment claims. Those three claims should be DISMISSED WITH PREJUDICE.
VI. 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 the 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 parties shall file any 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. An objecting party 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. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the party from a de novo review 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 findings and conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).