Opinion
22-CV-261-DC-RCG
02-05-2024
AMANDA AL-SAWAI, Plaintiff, v. UNIVERSITY OF TEXAS, PERMIAN BASIN, et al., Defendants.
REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE
RONALD C. GRIFFIN, UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is Defendants the University of Texas, Permian Basin, Steven Beach, and Wayne Counts's Motion to Dismiss. (Doc. 10). This case is before the Court through a Standing Order pursuant to 28 U.S.C. § 636 and Appendix C of the Local Court Rules for the Assignment of Duties to United States Magistrate Judges. After due consideration, the Court RECOMMENDS that Defendants the University of Texas, Permian Basin, Steven Beach, and Wayne Counts's Motion to Dismiss be GRANTED IN PART and DENIED IN PART. (Doc. 10).
All page number citations are to CM/ECF generated pagination unless otherwise noted.
I. Background
On December 19, 2022, Plaintiff Amanda Al-Sawai (“Plaintiff Al-Sawai”) filed her Original Complaint against University of Texas, Permian Basin, Steven Beach, and Wayne Counts (collectively, “Defendants”). (Doc. 1). Plaintiff Al-Sawai asserts causes of action for (1) gender and religious discrimination; (2) hostile work environment; and (3) retaliation all under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e etseq. (Doc. 1 at 12-15). Alternatively, Plaintiff incorporates her allegations under 42 U.S.C. § 1983. Id. at 15-16.
In the Amended Complaint, Plaintiff refers to herself both as “Amanda Al-Sawai” (Doc. 5 at 1-2) and “Mrs. Al-Sawaii.” (Doc. 5 at 3-12). It is unclear which is the correct spelling, but the Court will use “Al-Sawai,” as it is the spelling from the case heading.
In her Complaint, Plaintiff Al-Sawai identifies herself as a Muslim female. Id. at 2. She provides that on or about August 20, 2020, she applied for the “Administrator I position for the MMI department for a higher rate of pay and promise of flexibility to better care for her minor son.” Id. at 3. She alleges she reported to Defendants Dr. Steve Beach (“Defendant Beach”) and Dr. Wayne Counts (individually, “Defendant Counts”; together with Defendant Beach, the “Individual Defendants”). Id. at 3. During this time Plaintiff Al-Sawai was also a student at Defendant University of Texas at Permian Basin (“UTPB”). (Doc. 1 at 3).
Around February 2021, Ron Appling, of human resources stopped by Plaintiff Al-Sawai's office “to speak to her regarding some issues.” After this meeting, Plaintiff Al-Sawai alleges Mr. Appling's behavior changed towards her. Id. at 4. In March 2021, Plaintiff Al-Sawai verbally reported the solicitation of student complaints regarding Dr. Haensly to Mr. Appling. Id. She then alleges that in March 2021 she “became the target of large amounts of hostility, bullying and was reprimanded often for minor issues,” which increased in April 2021 and included “unkind comments and work interference.” Id.
On April 19, 2021, compliance called Plaintiff Al-Sawai in “regarding a report that was done by two of her coworkers reporting their concern for Mrs. Al-Sawai's safety.” Id. That same day, Dr. Gormus “informed Dr. Beach that [Plaintiff] Al-Sawai accused Lili Gai and Kaitlyn Veach of the report made to compliance.” (Doc. 1 at 4). Then, on April 21, 2021, Plaintiff Al-Sawai asserts “Ms. Veach engaged in an altercation in the hallway with [her] in front of Dr. Fannin and Dr. Wael regarding being accused of making the report regarding Mrs. Al-Sawai's safety to compliance.” Id. at 5. However, Plaintiff Al-Sawai refused to engage with Ms. Veach. Id. Afterwards, Plaintiff Al-Sawai spoke to Defendant Beach regarding the incident, informing Defendant Beach that “she will no longer be able to work overtime.” Id. Plaintiff Al-Sawai then alleges that as a result of her complaint regarding Ms. Veach, “Dr. Beach indirectly threatened [her] with termination and assigned Ms. Veach's work to Mrs. Al-Sawai.” Id.
Plaintiff Al-Sawai also states she verbally complained to Defendant Beach regarding the bullying and hostility she was experiencing in May 2021. (Doc. 1 at 4). Additionally, from April 2021 through August 2021, Plaintiff Al-Sawai states she continuously verbally complained to Dr. Counts regarding the bullying and hostility she was experiencing. Id. Further, she provides she: “experienced daily reprimands by Dr. Gai”; “reported that Chris Isham was interfering with her work and was being rude to her directly”; “Mr. Isham and Ms. Veach also start complaining loudly about Mrs. Al-Sawai walking past her office, often mocking Mrs. Al-Sawai's accent and statements she previously made.” Id. at 5.
In that same month, Plaintiff Al-Sawai noted a large amount of her Microsoft Teams files were deleted or missing. Id. Per IRD, “Mr. Isham was actively and intentionally deleting [her] files,” and “editing her work product in Sharepoint.” Id. Plaintiff Al-Sawai reported these issues to Defendant Counts, but she does not know if any remedial action was taken. (Doc. 1 at 5). Then, on May 28, 2021, Plaintiff Al-Sawai met with Defendant Beach to explain what was happening to her documents. Id. Plaintiff Al-Sawai alleges Defendant Beach accused her “of lying regarding the actions of Mr. Isham” and “made outrageous and unsubstantiated accusations towards [her] and brought up what Dr. Gormus stated regarding the report made to compliance April 19th, 2021.” Id. at 6. On June 10, 2021, Defendant Counts handed Plaintiff Al-Sawai a paper from compliance containing a complaint against her, which she characterizes as false. Id. Defendant Counts stated Defendant Beach did not want her to know about the complaint. Id.
Plaintiff does not provide what this acronym represents, but the Court assumes it is some form of IT services.
Throughout June 2021, Plaintiff Al-Sawai met with Mr. Appling regarding the aforementioned complaint against her. (Doc. 5 at 7). She also informed Mr. Appling of an increase in hostility, bullying, mocking by her coworkers. Id. Then, Plaintiff Al-Sawai alleges throughout August 2021 she “was frequently threatened and physically intimidated by Dr. Gai, Dr. Gormus, [Defendant] Beach, Ms. Veach and Mr. Isham,” and states she reported this behavior to Mr. Appling as she “began fearing for her safety.” Id. On August 18, 2021, Plaintiff Al-Sawai came across an email chain in Dr. Vafei's office, she characterizes the email chain as containing “large amounts of fabricated stories regarding [her] work.” Id. Plaintiff Al-Sawai then states that Defendant Counts allowed her to read the email but would not give her a copy. Id. It is unclear why Defendant Counts would be the person to allow her to read the email when she “came across” the email in Dr. Vafei's office. Plaintiff Al-Sawai then alleges she spoke with Defendant Beach regarding the email and he “indirectly threatened Mrs. Al-Sawai, academically, if she proceeded to complain about the email.” (Doc. 5 at 7).
On August 24, 2021, Plaintiff Al-Sawai submitted a “written FERPA violation and [a]cademic threat grievance to Mr. Appling.” Id. On August 31, 2021 Plaintiff Al-Sawai began working remotely and alleges she “began seeing retaliation from her coworkers.” Id. On September 28, 2021, Mr. Appling met with several of Plaintiff Al-Sawai's witnesses, but she states it “was unclear as to whether the investigation was regarding [her] complaints, or complaints about [her].” Id. at 8. According to Plaintiff Al-Sawai, Mr. Appling's investigation concluded on October 1, 2021, and “all reports were found to be unsubstantiated.” Id. She was then informed of the outcome and returned to work on October 4, 2021. (Doc. 5 at 8). That same day, Plaintiff Al-Sawai asserts Defendant Beach sent an email to her and the rest of the college “stating that twenty-one individuals testified on his behalf and intimated that [Plaintiff Al-Sawai] lied and was to immediately return to work, in person. Dr. Beach also stated that [Plaintiff Al-Sawai] created a bad culture and attached commentary regarding ‘unsubstantiated claims' in order to weaken [her] complaints.” Id. On October 5, 2021, Plaintiff Al-Sawai took the rest of the week off for medical appointments. Id. While she was gone Dr. Isha, “notified other departments that [Plaintiff Al-Sawai] was no longer employed by the university, and sought reassignment of her work.” Id. Plaintiff Al-Sawai alleges her access to all university programs and files was revoked that same day. Id.
It is unclear if the unsubstantiated reports were made by Plaintiff Al-Sawai or about her.
On October 8, 2021, Plaintiff Al-Sawai appealed her FERPA complaint to Mr. Appling and the dean of students. (Doc. 5 at 9). She then alleges that throughout October 2021 Defendant Beach personally requested changes to her SharePoint access. Id. She also asserts that on October 22, 2021, Defendant Counts “came into [Plaintiff Al-Sawai]'s office and physically intimidated her, mimicked violence by striking inanimate objects, lunged at [her], and attempted to prevent [her] from leaving her office.” Id. Plaintiff Al-Sawai reported the incident with Defendant Counts to the police and University Compliance. Id. She alleges that because of this incident she began working from home and dropped several courses she was taking. Id. Plaintiff Al-Sawai also states she found out she was “intentionally excluded from vital work meetings that directly affected her job duties and responsibilities.” (Doc. 5 at 9). She then asserts that as a result of the exclusion, she began receiving poor work performance emails. Id.
On November 12, 2021, Plaintiff Al-Sawai met with Dr. Fannin, who gave her a letter stating she was unprofessional and that there were job performance concerns. Id. He then asked Plaintiff Al-Sawai to sign the document confirming these allegations-she refused. Id. She was then told to return to work on November 15, 2021. Id. The same day she returned to work, Plaintiff Al-Sawai submitted a complaint to the Texas Board of Education and University of Texas System. (Doc. 5 at 10). In December 2021 she was informed by Dr. Stauffer that she “was not allowed to enroll into college courses, per the Dean's Office.” Id. (emphasis omitted).
In February 2022, Defendant Beach requested Plaintiff Al-Sawai return her extra set of keys. Id. In late February 2022, Plaintiff Al-Sawai discovered Mr. Isham was completing work assignments she usually completed. Id. On February 23, 2022, Plaintiff Al-Sawai confronted Mr. Isham about this and deletion of her SharePoint files. Id. at 11. Plaintiff Al-Sawai then submitted a complaint regarding the incident to HR. (Doc. 5 at 11). HR told her to go to the police station, where the police issued a criminal no trespass notice on behalf of UTPB Human Resources. Id. On February 24, 2022, Plaintiff Al-Sawai's HR complaints came back as “Not Substantiated.” Id. Plaintiff Al-Sawai alleges she “is the only female muslim [sic] in her department, and the only employee targeted by Deans Counts and Beach in such a way that both her employment and enrollment at the university were negatively impacted by adverse actions.” Id.
On March 8, 2022, Plaintiff Al-Sawai met with Mr. Fannin and Kim Campos and was informed that she was terminated. Id. At some point, Plaintiff Al-Sawai also received an updated criminal no trespass notice, effective March 10, 2022. (Doc. 5 at 11). On March 11, 2022, Plaintiff Al-Sawai received a letter stating she was terminated “and that the police will be at her home in fifteen minutes to collect UTPB's property.” Id. Sometime in April 2022, Plaintiff Al-Sawai learned the criminal no trespass notice was updated to an “[i]ndefinite duration” and was for all campus buildings, not just academic buildings as before. Id. at 12.
Plaintiff Al-Sawai then provides that she filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) in June 2022, and received her “Notice of Rights” on September 20, 2022. Id.
On June 20, 2023, Defendants filed the instant Motion to Dismiss arguing that Plaintiff Al-Sawai's § 1983 claims are barred by sovereign and qualified immunity, that she fails to state a claim regarding her Title VII claims, and she fails to state a claim regarding her § 1983 claims. (Doc. 10). Plaintiff Al-Sawai filed her Response in Opposition on June 30, 2023. (Doc. 12). This was 22 days after Defendants' Motion to Dismiss was filed and thus was untimely under Western District of Texas Local Rule CV-7(d). Id. Then, on July 18, 2023, Defendants filed a Motion to Strike and, in the Alternative, Reply in Support of Motion to Dismiss (Doc. 13).
Under Rule 6(b)(1) of the Federal Rules of Civil Procedure, when an act must be done within a specified time, the court may, for good cause, extend the time either “(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect.”
As noted above, Defendants raised the issue of the untimeliness of Plaintiff Al-Sawai's Response in their Motion to Strike and, in the Alternative, Reply in Support of Motion to Dismiss. (Doc. 13). Plaintiff Al-Sawai did not, however, submit any additional motion or filing with the Court that might have provided a basis for a finding of excusable neglect regarding the untimeliness of the filing. The Court will therefore GRANT Defendants' Motion to Strike, and strike Plaintiff Al-Sawai's Response as untimely, as well as Plaintiffs request for further opportunity to amend contained therein. (Doc. 12). However, because Defendants' Motion requests the dismissal of Plaintiff Al-Sawai's claims and could therefore be dispositive of the entire case, the Court will review the Motion on its merits, rather than granting the motion as unopposed. See W.D. Tex. Loc. R. CV-7(d); see also Jenes v. Sec. of Veterans Affs., SA-22-CV-00740-OLG, 2023 WL 8582600, at * 2 (W.D. Tex. Dec. 11, 2023). Consequently, this matter is ready for disposition.
II. Standard of Review
A. Rule 12(b)(1)
Dismissal is proper under Rule 12(b)(1) “when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Typically, in determining whether subject-matter jurisdiction exists, “[c]ourts must strictly construe all waivers of the federal government's sovereign immunity, [resolving] all ambiguities in favor of the sovereign.” Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998).
In ruling on a motion under Rule 12(b)(1), the Court “has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009). “Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction-its very power to hear the case-there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981). In short, no presumptive truthfulness attaches to a plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Id. at 413.
B. Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim upon which relief can be granted.” When considering a Rule 12(b)(6) motion to dismiss, a court must “accept the complaint's well-pleaded facts as true and view them in the light most favorable to the plaintiff.” Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). Federal Rule of Civil Procedure 8 requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Thus, to survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint need not include detailed facts to survive a Rule 12(b)(6) motion to dismiss. See Twombly, 550 U.S. at 555-56. However, a plaintiff must do more than recite the formulaic elements of a cause of action. See id. at 556-57. Additionally, the Court is not bound to accept as true a legal conclusion couched as a factual allegation in the complaint. See Iqbal, 556 U.S. at 678. Thus, although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead “specific facts, not mere conclusory allegations.” Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
III. Discussion
Here, Defendants advance four arguments for dismissing Plaintiff Al-Sawai's claims: (1) Plaintiff's § 1983 claims against UTPB are barred by sovereign immunity; (2) Plaintiff's § 1983 claims against the Individual Defendants are barred by qualified immunity; (3) Plaintiff fails to state a claim for her Title VII claims; and (4) Plaintiff fails to state a claim for her § 1983 claims. (Doc. 10 at 3-8). The Court will address Defendants' arguments below.
A. Sovereign Immunity Bars Plaintiff's § 1983 Claims Against UTPB
First, pursuant to Rule 12(b)(1), Defendants argue Plaintiff Al-Sawai's § 1983 claims against UTPB are barred by sovereign immunity, as “UTPB is an arm of the State of Texas, as a component institution of the University of Texas System.” (Doc. 10 at 8) (citing Tex. Educ. Code §§ 61.003(3), 72.01). The Court agrees.
“The Eleventh Amendment declares there is no ‘Judicial power of the United States' over a suit ‘against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.' ” Duncan v. Univ. of Tex. Health Science Ctr. at Hous., 469 Fed.Appx. 364, 366 (5th Cir. 2012) (quoting U.S. CONST. AMEND. XI). “Accordingly, absent a waiver or valid abrogation, ‘federal courts may not entertain a private person's suit against a State.' ” Chhim v. Univ. of Tex. at Austin, 2016 WL 154142, at *3 (W.D. Tex. Jan. 11, 2016) (quoting Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 248 (2011)). “It is well-established that sovereign immunity applies not only to actions where a state is actually named as a defendant, but also to ‘certain actions against state agents and state instrumentalities.' ” Id. (quoting Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)). As a public university within the University of Texas university system, UTPB enjoys the state's sovereign immunity. See Duncan, 469 Fed.Appx. at 366; Nelson v. Univ. of Tex. at Dall., 535 F.3d 318, 320 (5th Cir. 2008); United States ex rel. Foulds v. Tex. Tech Univ., 171 F.3d 279, 289 n.14 (5th Cir. 1999). Thus, Plaintiff Al-
Sawai cannot bring her § 1983 claims against UTPB unless her claims fall within one of the three recognized exceptions to sovereign immunity: “suits seek injunctive or declaratory relief against state officials under Ex parte Young, 209 U.S. 123, (1908); a state's waiver of immunity, Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 267 (1997); or Congress's abrogation of state immunity via Section 5 of the Fourteenth Amendment, Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001).” Duncan, 469 Fed.Appx. at 366 (parallel citations omitted).
Here, Plaintiff Al-Sawai's § 1983 claims against UTPB do not meet any of the three exceptions. Her Complaint does not seek injunctive relief. Additionally, “[n]o exception applies to [her] § 1983 claims, because there has been no abrogation by Congress, see Quern v. Jordan, 440 U.S. 332, 345 (1979), nor waiver by the State of Texas, Aguilar v. Tex. Dep't of Crim. Justice, 160 F.3d 1052, 1054 (5th Cir.1998).” Duncan, 469 Fed.Appx. at 367.
UTPB is a state university and institution of higher education organized under the laws of the State of Texas. Tex. Educ. Code § 72.01. Accordingly, UTPB is entitled to sovereign immunity with regard to Plaintiff Al-Sawai's § 1983 claims against it and the Court
RECOMMENDS Plaintiff Al-Sawai's § 1983 claims against UTPB be DISMISSED for lack of jurisdiction under Rule 12(b)(1).
B. Plaintiff's § 1983 is Barred by Qualified Immunity
Plaintiff Al-Sawai alternatively pleads her Title VII claims under § 1983 and brings them against the Individual Defendants in their individual capacities. (Doc. 5 at 16-17). This implicates qualified immunity.
“Government officials who perform discretionary functions are entitled to the defense of qualified immunity, which shields them from suit as well as liability for civil damages, if their conduct does not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.' ” Bradyn S. v. Waxahachie Indep. Sch. Dist., 407 F.Supp.3d 612, 622 (N.D. Tex. 2019) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is an affirmative defense that must be pled. Id. (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)). The Individual Defendants raised the defense in the instant Motion to Dismiss. (Doc. 10).
After a defendant asserts qualified immunity, the burden shifts to the plaintiff to “rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law.” See Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997) (quoting Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992)). The Fifth Circuit does not require that “an official demonstrate that he did not violate clearly established federal rights.” Id. (citing Salas, 980 F.2d at 306). That burden falls solely on the plaintiff.
Courts apply a two-part inquiry when deciding whether an official is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001). The court must decide “whether the facts alleged or shown are sufficient to make out a violation of a constitutional or federal statutory right.” Id. If there was no violation, no further inquiry is necessary. Id. However, if the plaintiff sufficiently pleads a constitutional violation, the court must then decide “whether the right at issue was clearly established at the time of the government official's alleged misconduct.” Bradyn S., 407 F.Supp.3d at 622-23 (citing Saucier, 544 U.S. at 201). Under Pearson v. Callahan, district courts are allowed to exercise their discretion “in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” 555 U.S. 223, 236 (2009). The second prong of the two-part inquiry involves two questions. See Bradyn S., 407 F.Supp.3d at 623 (citations omitted). The first inquiry is “whether the allegedly violated constitutional right[] [was] clearly established at the time of the incident.” Id. (citations omitted) (alterations in original). If so, the second inquiry is “whether the conduct of the defendant[] [official] was objectively unreasonable in light of that then clearly established law.” Id. (citations omitted) (alterations in original).
When considering a qualified immunity defense raised in the context of a Rule 12(b)(6) motion to dismiss, the Court must decide whether “the plaintiff's pleadings assert facts which, if true, would overcome the defense of qualified immunity.” See Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (citations omitted). “Thus, a plaintiff seeking to overcome qualified immunity must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense with equal specificity.” Id. “After the district court finds a plaintiff has so pled, if the court remains ‘unable to rule on the immunity defense without further clarification of the facts,' it may issue a discovery order ‘narrowly tailored to uncover only those facts needed to rule on the immunity claim.' ” Id. (emphasis in original) (quoting Lion Boulos v. Wilson, 834 F.2d 504, 506 (5th Cir. 1987)). “For there to be liability under [§] 1983, a defendant must have been personally involved in the conduct causing a deprivation of constitutional rights, or there must be a causal connection between the actions of that person and the constitutional right sought to be redressed.” King v. Louisiana, 294 Fed.Appx. 77, 83 (5th Cir. 2008) (per curiam) (citing Lozano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983)).
Here, the allegations against the Individual Defendants fail to overcome qualified immunity. Plaintiff Al-Sawai's Amended Complaint alleges the following conduct as to Defendant Beach: She reported to Defendant Beach, even though he was not her direct supervisor. (Doc. 5 at ¶ 11). Defendant Beach informed Plaintiff Al-Sawai that all finance and economic students would be moved to Dr. Gormus for advising. Id. at ¶ 15. Defendant Beach participated in a conference call with the UTPB system to terminate the employment of Dr. Carson. Id. at ¶ 16. He stated that Dr. Carson's program was closed but would be revived after Dr. Carson's successful termination. Id. at ¶¶ 16-17. Sometime in April/May of 2021 Plaintiff Al-Sawai complained to Defendant Beach regarding the bullying and hostility she was experiencing. Id. at ¶ 23. Plaintiff Al-Sawai spoke with Defendant Beach regarding an altercation she had with Ms. Veach, informing Defendant Beach she would no longer be able to work overtime. (Doc. 5 at ¶ 28). Because of her complaint regarding Ms. Veach, Defendant Beach “indirectly threatened [Plaintiff Al-Sawai] with termination” and “assigned Ms. Veach's work to [her].” Id. at ¶ 29. At this time Defendant Beach also stated he would introduce a flextime policy to staff. Id. at ¶ 30. On May 28, 2021, Plaintiff Al-Sawai met with Defendant Beach to explain that Mr. Isham was deleting her files and editing her work. Id. At ¶ 33. Defendant Beach accused her of lying about Mr. Isham's alleged actions, he also “made outrageous and unsubstantiated accusations towards [her].” Id. at ¶ 34. Throughout August 2021, Plaintiff Al-Sawai was “frequently threatened and physically intimidated” by Defendant Beach and others. (Doc. 5 at ¶ 41). In August 2021, Plaintiff Al-Sawai “came across” an email chain in Dr. Vafei's office containing fabricated stories about her work. Id. at ¶ 42. She then spoke with Defendant Beach about the email. Id. Then, Defendant Beach “indirectly threatened [her] academically, if she proceeded to complain about the email.” Id. In October 2021, Defendant Beach sent an email regarding an HR investigation into Plaintiff Al-Sawai's complaint and/or complaints made about Plaintiff Al-Sawai. Id. at ¶ 48. The email stated 21 individuals testified on his behalf, intimated she had lied, stated she created a bad culture, and stated that Plaintiff Al-Sawai was to immediately return to work in-person. (Doc. 5 at ¶ 48). In February 2022, Defendant Beach asked her to return her extra set of keys, accused her of having Mr. Isham download SharePoint files, and demanded to know what agency was auditing the files. Id. at ¶ 60
All the following citations regarding Defendant Beach's specific conduct are cited to the Amended Complaint's paragraph designations rather than CM/ECF generated pagination.
Regarding Defendant Counts, she alleges: She directly reported to Defendant Counts for her position as an accreditation specialist. Id. at ¶ 13. In April of 2021, when Plaintiff Al-Sawai began seeing an increase in hostility and bullying, Defendant Counts noticed the situation and spoke to Defendant Beach. Id. at ¶ 22. From April to August 2021, Plaintiff Al-Sawai “continuously verbally complained to [Defendant] Counts regarding the bullying and hostility she was facing.” Id. at ¶ 24. In May 2021, Plaintiff reported to Defendant Counts when Plaintiff Al-Sawai discovered Mr. Isham deleting her SharePoint files and editing her work. (Doc. 5 at ¶ 32). On June 10, 2021, Defendant Counts gave Plaintiff Al-Sawai a printout of a complaint about her from compliance. Id. at ¶ 36. Defendant Counts took the printout and would not give her a copy. Id. at ¶ 38. In August 2021, Plaintiff Al-Sawai “came across” an email chain in Dr. Vafei's office containing fabricated stories about her work. Id. at ¶ 42. Defendant Counts allowed her to read the email but refused to let her have a copy of the email. Id. On October 5, 2021, Plaintiff Al-Sawai informed Defendant Counts that she would be out for the remainder of the week for medical appointments. (Doc. 5 at ¶ 49). On October 22, 2021, Defendant Counts came into her office and “physically intimidated her, mimicked violence by striking inanimate objects, lunged at [her], and attempted to prevent [her] from leaving her office.” Id. at ¶ 54. Plaintiff Al-Sawai reported the incident to the police and university compliance. Id. at ¶ 55. As a result of this incident, Plaintiff Al-Sawai began working from home and dropped several of her courses. Id.
All the following citations regarding Defendant Counts's specific conduct are cited to the Amended Complaint's paragraph designations rather than CM/ECF generated pagination.
Again, the Court notes it is unclear why Defendant Counts would be the person to allow her to read the email when she “came across” the email in Dr. Vadei's office.
Plaintiff Al-Sawai's pleaded facts do not suggest either of the Individual Defendants was personally involved in any alleged constitutional deprivations, that their conduct was objectively unreasonable, or even specify which constitutional rights they allegedly violated. Her Amended Complaint makes the general assertion that “all tangible employment actions were either (a) a direct or indirect violation of the Plaintiff's civil rights, or (b) in direct retaliation of her complaints regarding same, conducted by same.” (Doc. 5 at 16). She does not specifically allege within her Amended Complaint which constitutional rights the Individual Defendants violated. In sum, there are no allegations to overcome the Individual Defendants' claim of qualified immunity.
Thus, the Court RECOMMENDS Plaintiff Al-Saiwai's § 1983 claims against the
Individual Defendants be DISMISSED, as they are barred by qualified immunity.
C. Plaintiff Adequately Pleads her Claims for Religious and Gender Discrimination
Next, the Court moves to Plaintiff Al-Sawai's first claims under Title VII-gender and religious discrimination. Both religious discrimination and gender discrimination fall within the category of disparate-treatment claims. See Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 766 (5th Cir. 2019) (“Disparate-treatment discrimination addresses employment actions that treat an employee worse than others based on the employee's race, color, religion, sex, or national origin.” (quoting Pacheco v. Mineta, 448 F.3d 783, 787 (5th Cir. 2006))). To survive a 12(b)(6) motion, “a plaintiff need not make out a prima facie case of discrimination [underMcDonnell Douglas].” Id. (quoting Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013)). Instead, a plaintiff must “plead sufficient facts on all of the ultimate elements of a disparate treatment claim to make [their] case plausible.” Id. (quoting Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016)).
Under Fifth Circuit precedent, “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.' ” Id. at 767 (citing Raj, 714 F.3d at 331; Chimm, 836 at 470). “Specifically, a plaintiff must allege facts sufficient to support a finding “that he was treated less favorably than others outside of his protected class .” Olivarez v. T-mobile USA, Inc., 997 F.3d 595, 600 (5th Cir. 2021) (quoting Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 427 (5th Cir. 2017)).
Defendants seek dismissal of Plaintiff Al-Sawai's discrimination claims by arguing she failed to plead any facts indicating less favorable treatment than others “similarly situated” outside of the asserted protected classes. (Doc. 10 at 11); see Olivarez, 997 F.3d at 600; Cicalese, 924 F.3d at 767. But this argument blatantly disregards a paragraph of Plaintiff's Amended Complaint that Defendants cite to in their own Motion to Dismiss. (See Doc. 10 at 13). Specifically, this paragraph reads: “[Plaintiff] Al-Sawai is the only female muslim [sic] in her department, and the only employee targeted by Deans Counts and Beach in such a way that both her employment and enrollment at the university were negatively impacted by adverse actions.” (Doc. 5 at 11). Taken in a light most favorable to Plaintiff, as the Court must do at this procedural stage, this allegation when considered with her other pleaded facts is sufficient to allege that she was treated less favorably than others outside of her protected classes. Thus, the Court RECOMMENDS Defendants' Motion to Dismiss Plaintiff Al-Sawai's religious and gender discrimination claims be DENIED. (Doc. 10).
D. PlaintiffAdequately Pleads her Retaliation Claim in Part
Defendants also seek dismissal of Plaintiff's retaliation claim. Id. at 11-13. “A plaintiff establishes a prima facie case of retaliation by showing: (1) they engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) there was a causal connection between the participation in the protected activity and the adverse employment decision.” Smith v. McDonough, SA-22-CV-01383-JKP, 2023 WL 5918322, at *6 (W.D. Tex. Sept. 8, 2023) (quoting LeMaire v. La. Bd. of Transp. & Dev., 480 F.3d 383, 388 (5th Cir. 2007)). “Under Title VII, a ‘protected activity' for the purposes of a retaliation claim includes any opposition to any practice rendered unlawful by Title VII, including ‘making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII.' ” Id. (quoting Ackel v. Nat'l Commc'n Inc., 339 F.3d 376, 385 (5th Cir. 2003)). “An adverse employment action in a retaliation claim is not limited to the Fifth Circuit's previous ‘ultimate employment decision' standard for discrimination claim under Title VII.” Berrios v. Miller, EP-22-CV-00139-DCG-MAT, 2024 WL 40218, at *6 (W.D. Tex. Jan. 3, 2024) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). Instead, “an adverse employment action under a Title VII retaliation claim, is ‘one that a reasonable employee would have found to be materially adverse, which means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.' ” Id. (quoting Porter v. Houma Terrebone Hous. Auth. Bd. of Comm 'rs, 810 F.3d 940, 945 (5th Cir. 2015)).
Here Defendants contend Plaintiff Al-Sawai's Amended Complaint fails to: (1) “allege any adverse employment action for Title VII purposes”; and (2) “explain how the alleged retaliation is causally connected to a protected activity.” (Doc. 10 at 12-13). Defendants do not challenge whether Plaintiff Al-Sawai sufficiently pleaded her engagement in a protected activity or activities. Id.
In her Amended Complaint, Plaintiff Al-Sawai pleads the following adverse employment actions occurred:
(i) the removal of work hours to allow her to qualify for her position within the Defendant's employment;
(ii) the removal of credit hours to allow her to qualify for her scholastic scholarship;
(iii) the removal of credit hours to allow her to achieve her necessary curriculum requirements to meet the credits to graduate with her intended degree; (iv) the issuance of an unsubstantiated criminal trespass on University grounds despite the fact that the Plaintiff and her family lived in on-or-near-campus dormitories; and ultimately (v) the Plaintiff's termination from employment ....(Doc. 5 at 14). Plaintiff Al-Sawai relies on the temporal proximity of her protected activity to the alleged adverse employment actions to establish causation. (Id. at 13-14). As to this list of alleged adverse employment actions, Defendants argue, “outside of termination, Plaintiff fails to allege any adverse employment action for Title VII purposes.” (Doc. 10 at 12) (citing Puleo v. Texana MHMR Ctr., 187 F.Supp.3d 769, 781-82 (S.D. Tex. 2016)).
First, the Court notes Plaintiff Al-Sawai's Amended Complaint does not contain any facts alleging the removal of credit hours caused her to lose a scholarship. Nor does she allege any facts regarding her work hours being removed. That leaves the Court with three allegations of adverse employment action: removal of credit hours necessary for her curriculum; issuance of criminal trespass applicable to UTPB's entire campus; and termination. At this stage the Court finds these three allegations could constitute adverse employment actions for retaliation purposes, since when taken in a light favorable to Plaintiff Al-Sawai, they could dissuade a reasonable employee from making or supporting a charge of discrimination. Importantly, the Court makes no finding as to whether the removal of credit hours or issuance of a criminal trespass constitute adverse employment actions. Additionally, it is clear, as Defendants concede, that termination is recognized as an adverse employment action for Title VII purposes.
Plaintiff Al-Sawai alleges her access to documents was restricted (Doc. 5 at ¶52); she was restricted from meetings (Id. at ¶55); and that her work was reassigned (Id. at ¶ 49, 61). However, she does not state that any of these incidents caused a decrease in her work hours. These citations are to paragraph designations in Plaintiff Al-Sawai's Amended Complaint.
Now the Court must determine whether Plaintiff Al-Sawai's Amended Complaint sufficiently pleads a causal connection between her participation in the protected activity and the three adverse employment actions remaining. “At the prima facie stage, ‘the standard for satisfying the causation element is ‘much less stringent' than a ‘but for' causation standard.' Nevertheless, the plaintiff must produce some evidence of a causal link between the protected activity and the adverse employment action to establish a prima facie case of retaliation.” Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003) (quoting Fierros v. Tex. Dep't of Health, 274 F.3d 187, 191 (5th Cir. 2001)).
As noted above, Plaintiff Al-Sawai relies solely on the temporal proximity of her protected activities to the alleged adverse employment actions to establish causation. (Id. at 1314). Close timing between an employee's protected activity and an adverse employment action can be sufficient evidence of causality so long as the temporal proximity is “very close.” Johnson v. Iberia Med. Ctr. Found., No. 23-30159, 2023 WL 7703872, at *4 (5th Cir. 2023) (per curiam) (quoting Aguillard v. La. Coll., 824 Fed.Appx. 248, 251 (5th Cir. 2020), cert. denied, 141 S.Ct. 1079 (2021)). “While a four-month gap may be sufficient evidence of causation, a five-month gap is too long absent other evidence.” Aguillard, 824 Fed.Appx. at 251 (per curiam) (citing Feist v. La. Dep't of Just., Off. of the Att'y Gen., 730 F.3d 450, 454 (5th Cir. 2013)).
The Court begins in chronological order. On November 15, 2021, Plaintiff Al-Sawai submitted a complaint to the Texas Board of Education and University of Texas System. This constitutes a sufficiently pleaded protected activity. (Doc. 5 at 10). Throughout December 2021, Plaintiff Al-Sawai alleges she was informed that she was not allowed to enroll in classes per the Dean's Office. She was also denied a contract study. Id. This is most likely a four-to-six-week lapse of time which, when viewing the facts in the light most favorable to Plaintiff Al-Sawai, is sufficient to establish the causality element of herprima facie claim. Aguillard, 824 Fed.Appx. at 251; Feist, 730 F.3d at 454. Next, on February 23, 2022, a Criminal No Trespass was issued on behalf of UTPB Human Resources. Then, on March 8, Plaintiff Al-Sawai was informed she would be terminated. On March 10, a new updated Criminal No Trespass notice was issued. Finally, on March 11, 2022, Plaintiff Al-Sawai received an email stating she was terminated. Id. The most-recent protected activity to both the Criminal No Trespass and termination remains the November 15, 2021 complaint. Still, under Fifth Circuit precedent this four-month lapse of time remains sufficient, especially when viewing the facts in the light most favorable to Plaintiff Al-Sawai, to establishing the causality element of herprima facie claim. Aguillard, 824 Fed.Appx. at 251; Feist, 730 F.3d at 454.
In sum, the Court RECOMMENDS Defendants' Motion to Dismiss Plaintiff Al-Sawai's Title VII retaliation claim be DENIED. (Doc. 10).
E. Plaintiff Fails to State a Claim for Hostile Work Environment
Finally, Defendants seek dismissal of Plaintiff Al-Sawai's hostile work environment claim. (Doc. 10 at 13-15). “A hostile work environment exists ‘when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.' ” Hubbard v. Tex. Instruments Inc., No. 3:18-CV-2388-C, 2019 WL 13252518, at *6 (N.D. Tex. Mar. 29, 2019) (quoting Stewart v. Miss. Transp. Comm 'n, 586 F.3d 321, 328 (5th Cir. 2009)).
To establish a prima facie hostile work environment claim under Title VII, a plaintiff must show (1) they belong to a protected class; (2) they were subject to unwelcome harassment; (3) the harassment was based on the protected class; (4) the harassment affected a ‘term, condition, or privilege' of employment; and (5) the employer ‘knew or should have known of the harassment and failed to take prompt remedial action.' ” Smith, 2023 WL 5918322, at *8 (quoting Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 873 (5th Cir. 1999)). However, “[f]or workplace harassment to constitute actionable discrimination, the harassment must be so severe and pervasive and permeated with discriminatory intent so as to alter the terms and conditions of employment.” Jenes, 2023 WL 8582600, at *5 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). That is because “Title VII . . . is not a ‘general civility code,' and ‘simple teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.' ” Lauderdale v. Tex. Dep't of Crim. Just., 512 F.3d 157, 163 (5th Cir. 2007) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
Plaintiff Al-Sawai's Amended Complaint alleges a series of acts by Defendants, but these acts (even taken together) do not rise to the level of severe and pervasive harassment giving rise to a plausible claim of a hostile work environment. See id.; see also Hubbard, 2019 WL 13252518, at *7 (“Further, to the extent Plaintiff alleges that she was subjected to ‘bullying, harassment, intimidation, ridicule, insults, rumors and innuendoes,' Plaintiff fails to describe any specific incident(s) to support those contentions.”). Nor does Plaintiff provide facts alleging Defendants' acts were based on her protected characteristics. See Hubbard, 2019 WL 13252518, at *7 (“In addition, Plaintiff fails to allege facts that would support an inference that the conduct of which she complains was motivated by her [protected characteristics].”). Thus, the Court RECOMMENDS Defendants' Motion to Dismiss Al-Sawai's hostile work environment claim be GRANTED. (Doc. 10).
The Court acknowledges the one instance wherein Plaintiff Al-Sawai pleads that “Mr. Isham and Ms. Veach also start complaining loudly about [Plaintiff] Al-Sawai walking past her office [sic], often mocking [Plaintiff] Al-Sawai's accent and statements previously made.” (Doc. 5 at ¶ 31). This citation is to the Amended Complaint's paragraph designations rather than CM/ECF generated pagination. However, this one instance is not enough to sufficiently plead a hostile work environment claim, even viewing the facts favorably to Plaintiff Al-Sawai. See Indest v. Clearlake Rehab. Hosp., Inc., 306 Fed.Appx. 104, 107 (5th Cir. 2009) (per curiam) (“Discourtesy or rudeness, ‘offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in terms and conditions of employment.' ” quoting Faragher, 524 U.S. at 788)).
IV. Recommendation and Order
For the foregoing reasons, the Court RECOMMENDS that Defendants' Motion to Dismiss be GRANTED IN PART and DENIED IN PART. (Doc. 10). The Court further GRANTS Defendants' Motion to Strike Plaintiff's Response. (Doc. 13).
Instructions for Service and Notice of Right to Appeal/Object
In the event that a party has not been served by the Clerk with this Report and Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is ORDERED to mail such party a copy of this Report and Recommendation by certified mail. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to this report must serve and file written objections within fourteen (14) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made; the District Judge need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court and serve the objections on all other parties. A party's failure to file such objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Judge. Additionally, a party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Judge. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).