Opinion
SA-22-CV-342-XR SA-22-CV-739-XR SA-23- CV-1240-XR SA-23-CV-1241-XR
08-01-2024
LAWRENCE HOUSTON HOBBS, Plaintiff v. MARC D. STANLEY et al. Defendants
ORDER
XIAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE
On this date, the Court considered (1) Defendants' motion to dismiss these consolidation actions (ECF No. 42), Plaintiff's response (ECF No. 45), and Defendants' reply (ECF No. 46) and (2) Plaintiff's motion for leave to file an amended complaint (ECF No. 47) and Defendants' response (ECF No. 48). After careful consideration, the Court issues the following order.
BACKGROUND
In 2022, Plaintiff Lawrence Houston Hobbs, proceeding pro se, filed four actions in the Western District of Texas that were ultimately consolidated before the undersigned under this lead case, Hobbs v. Stanley, 5:22-cv-342-XR (the “Stanley Action”). In his various pleadings, Plaintiff generally alleged claims of employment discrimination and violation of his civil rights based on his employment, from 2017 to 2019, with the Bureau of Land Management (“BLM”) in Wisconsin and with the United States Air Force (“USAF”) in Texas, related proceedings before the Equal Employment Opportunity Commission (“EEOC”), and his subsequent indictment for credit card abuse in Val Verde, Texas. Hobbs asserted claims against four federal officers, the Department of the Interior (“DOI”), the USAF, and several Doe Defendants for employment discrimination and retaliation under Title VII and the Age Discrimination in Employment Act (“ADEA”) and for violations of his constitutional rights under the implied cause of action theory adopted by the Supreme Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
See ECF No. 31 (consolidating Hobbs v. Kendall, 5:22-cv-739-XR (the “Kendall Action”), Hobbs v. Stevens, 5:23-cv-1240-XR (the “Stevens Action”), and Hobbs v. Haaland, 5:23-cv-1241-XR (the “Haaland Action”) under the Stanley Action, which was first filed)).
From October 2017 to December 2018, Hobbs worked for the BLM, which is part of the Department of the Interior (“DOI”), in Milwaukee, Wisconsin. In April 2018, he filed several EEOC complaints against the DOI alleging discrimination, retaliation, and hostile work environment. In the first EEOC proceeding, the Administrative Judge granted summary judgment for the DOI, and Hobbs appealed that decision to the Office of Federal Operations. The Office of Federal Operations dismissed that appeal because Hobbs filed a civil action in this district. The second EEOC proceeding was dismissed before a decision was issued because Hobbs filed a complaint in the Eastern District of Wisconsin.
Hobbs appears to have filed four lawsuits in the Eastern District of Wisconsin related to these proceedings in 2022Hobbs v. Willis et al. (2:22-cv-467-pp), Hobbs v. Shesky et al. (2:22-cv-492-pp), Hobbs v. Shesky et al. (2:22-cv-680-pp), and Hobbs v. Haaland et al. (2:22-cv-721-pp)-three of which remain pending. In the same year, Hobbs also filed a lawsuit for employment discrimination in the Eastern District of Missouri against Haaland and a private entity, “Doe Run Corporation”, that allegedly conspired with BLM officials to discriminate against him. See Hobbs v. Doe Run (4:22-cv-612-RWS). The Missouri action was dismissed under Rule 12(b)(6) in October 2023. See Hobbs v. Doe Run, ECF No. 50. In dismissing Hobbs's claims, the court stated Hobbs's complaint failed to comply with Rule 8's requirement that the complaint contain “a short plain statement of the claim showing that the pleader is entitled to relief.” Id. at 2 (emphasis in original). Instead, the court observed:
[Hobbs's] complaint is a rambling document full of conclusory allegations that fails to plead sufficient facts to state multiple claims or to put Defendants on notice of what they are specifically being accused of in the complaint.
Although Hobbs is suing multiple defendants, he does not delineate in the counts of his complaint against which defendant he is asserting each claim. Instead he uses the term “Defendants” in each count. Moreover, dozens of Hobbs' claims are without merit because he does not have any standing to bring them or they completely lack any factual basis.Id. Citing his proceedings in Wisconsin and Texas, the court concluded that “Hobbs cannot assert the same claims arising from the same operative facts in multiple lawsuits filed in different federal courts” and that venue for his claims, “if properly asserted, would lie in United States District Court in the Eastern District of Wisconsin.” Id. at 3. The Eighth Circuit summarily affirmed the trial court's dismissal order. See Hobbs v. Doe Run, ECF No. 59.
Before those EEOC proceedings concluded and during his employment with the DOI, Hobbs applied for a Supervisory General Engineer position with the Department of Air Force (“USAF”) in March 2018. The USAF selected him for this position and, as part of the hiring process, asked him to complete an OF-306 form, which asked whether he was under charges for any violation of the law. Hobbs answered, “No,” and signed the form in September 2018. On November 1, 2018, Hobbs received a citation for disorderly conduct. On November 19, Hobbs began his employment with the USAF and, as a part of the onboarding process, he again represented that he was not facing any pending charges for any violations of the law. Four months later, the USAF's civilian personnel officer informed Hobbs's first-line supervisor about the pending charge for disorderly conduct. Hobbs was ultimately removed from his position in 2019.
In July 2019, shortly after his termination from the USAF, DOI agent Angela Stevens notified the 63rd District Attorney's (“DA”) Office about unauthorized credit card charges. In December 2020, Hobbs was indicted on four counts of credit card abuse in the 63rd Judicial District Court in Val Verde, Texas. The DA's Office represented the State of Texas in those proceedings. Hobbs moved to quash or set aside the indictment, and the DA's Office decided not to contest the motion. The state court granted the motion and dismissed the action.
I. Procedural History
On October 23, 2023, the Court issued an order dismissing with prejudice Plaintiffs' Bivens claims, claims for conspiracy to commit employment discrimination, and any claims for failure to intervene, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, negligent hiring, supervision, and training and denied an opportunity to replead because it would be futile. See ECF No. 32 at 21.
The Court dismissed Plaintiff's claims under Title VII and the ADEA without prejudice, however, and granted Plaintiff leave to file an amended, omnibus complaint addressing his employment claims by November 6, 2023. Id. at 21-22. The Court further directed Plaintiff that the amended pleading should be no more than 20 pages in length and must state with specificity how he was treated less favorably than a younger employee, female employee, and/or non-White employee while he was employed with each agency. Id. at 22-23.
After several extensions to the deadline, Plaintiff filed his “1st Amended Complaint Asserting a Conspiracy to Commit Violation of Plaintiffs Equal Employment Rights” (“FAC”) against Haaland and Kendall, in their official capacities on December 21, 2023, one day after the extended deadline had expired. See ECF No. 37. The FAC is 20 pages long but includes 221 pages of exhibits. See ECF Nos. 37, 37-1, 37-2, 37-3, 37-4.
About one-week before Defendants' deadline to answer or otherwise respond to the FAC, Plaintiff filed his Second Amended Complaint (“SAC”), totaling over 800 pages in length (including exhibits), without obtaining leave of Court or Defendants' written consent. See ECF No. 39 (docketed on January 16, 2024). On January 18, the Court entered an order striking the SAC for failure to comply with FED. R. CIV. P. 15(a)(2). See ECF No. 41.
On January 22, 2024, Defendants moved to dismiss the FAC for violating the parameters for the amended omnibus complaint set forth in the Court's October 2023 order, ECF No. 32 at 2223, and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See ECF No. 42. In response, Plaintiff filed a motion for leave to file a Third Amended Complaint, see ECF No. 47. Defendants oppose the proposed amendment because it does not comply with the parameters set forth in the Court's October 2023 order and fails to cure the substantive deficiencies in the SAC. See ECF No. 48.
DISCUSSION
To begin, the Court notes that Plaintiff is proceeding pro se in this case. When reviewing a pro se plaintiff's complaint, the Court must construe the allegations liberally, holding the pro se to less stringent pleading standards than those applicable to lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Still, a party's pro se status does not offer him “an impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation and abuse already overloaded court dockets.” Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986). “A complaint that is excessively long, rambling, disjointed, incoherent, or full of irrelevant and confusing material will patently fail the Rule's standard, and so will a complaint that contains an untidy assortment of claims that are neither plainly nor concisely stated, nor meaningfully distinguished from bold conclusions, sharp harangues and personal comments” See Ibrahim v. Bernhardt, No. 19-cv-00101, 2020 WL 94877, at *6 (E.D. La. Jan. 8, 2020) (quoting Jiggetts v. District of Columbia, 319 F.R.D. 408, 413 (D.D.C. 2017), aff'd sub nom. Cooper v. District of Columbia, No. 17-7021, 2017 WL 5664737 (D.C. Cir. Nov. 1, 2017) (internal quotations omitted)).
Likewise, while courts “liberally construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than to parties represented by counsel, pro se parties must still brief the issues and reasonably comply with [federal procedural rules].” U.S. Bank Nat'l Ass'n v. Johnson, No. 1:15-CV-788-RP, 2017 WL 598499, at *2 (W.D. Tex. Feb. 14, 2017) (quoting Grant v. Cuellar, 59 F.3d 524, 524 (5th Cir. 1995)). Whether represented by counsel or appearing pro se, plaintiffs must still present specific facts, rather than conclusory allegations, to avoid a Rule 12(b)(6) dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
I. Motion to Dismiss
A. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for the dismissal of a complaint for “failure to state a claim upon which relief can be granted.” To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A claim for relief must contain: (1) “a short and plain statement of the grounds for the court's jurisdiction”; (2) “a short and plain statement of the claim showing that the pleader is entitled to the relief”; and (3) “a demand for the relief sought.” FED. R. CIV. P. 8(a). A plaintiff “must provide enough factual allegations to draw the reasonable inference that the elements exist.” Innova Hosp. San Antonio, L.P. v. Blue Cross & Blue Shield of Ga., Inc., 995 F.Supp.2d 587, 602 (N.D. Tex. Feb. 3, 2014) (citing Patrick v. WalMart, Inc.-Store No. 155, 681 F.3d 614, 617 (5th Cir. 2012)); see also Torch Liquidating Trust ex rel. Bridge Assocs. L.L.C. v. Stockstill, 561 F.3d 377, 384 (5th Cir. 2009) (“[T]he complaint must contain either direct allegations or permit properly drawn inferences to support every material point necessary to sustain recovery”) (internal quotation marks and citations omitted).
In considering a motion to dismiss under Rule 12(b)(6), all factual allegations from the complaint should be taken as true, and the facts are to be construed in the light most favorable to the nonmoving party. Fernandez-Montes v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993). Still, a complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. “‘[N]aked assertions' devoid of ‘further factual enhancement,'” and “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to the presumption of truth. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
B. Analysis
The Court declines to consider the additional pleadings attached as exhibits to the FAC. Hobbs “may not evade the Court's page limitations in this manner.” Odem v. Townsend, No. 6:22CV268, 2023 WL 4854814, at *1 (E.D. Tex. Mar. 20, 2023), report and recommendation adopted, 2023 WL 4848827 (July 28, 2023); see also Perry v. Director, TDCJ, No. 6:16-cv-1108, 2017 WL 3634189, at *2 (E.D. Tex. May 12, 2017) (litigant “cannot evade the Court's page limit restrictions by incorporating by reference arguments in other pleadings”), report and recommendation adopted, 2017 WL 3623045 (Aug. 22, 2017); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (declining to consider arguments incorporated by reference to other filings because it “would lengthen a brief already at the 50-page limit”).
Turning to the allegations in the FAC itself, Hobbs alleges that the DOI and USAF's employment-related conduct amounts to a “conspiracy” to violate the United States Constitution and various civil rights laws. See, e.g., ECF No. 37 at 2, 8 (citing 42 U.S.C. § 1985). Plaintiff characterizes each his four claims against the DOI and the USAF as “Conspiracy to Commit Invidious Discrimination,” with specific “counts” identified as “Disparate Treatment,” “Hostile Work Environment,” “Retaliation,” and “ Sex.” See id. at 10, 15, 17, 19. Title VII, however, “provides the exclusive judicial remedy for federal employees who assert claims of employment discrimination on the basis of race, color, sex, religion or national origin.” Paterson v. Weinberger, 644 F.2d 521, 525 (5th Cir. 1981); Jackson v. Widnall, 99 F.3d 710, 716 (5th Cir. 1996). As to age discrimination, the ADEA is “the exclusive remedy for age discrimination in federal employment.” Paterson, 644 F.2d at 524. Accordingly, the Court will analyze Hobbs's employment-related claims under Title VII and the ADEA only.
Hobbs further suggests that the Court has jurisdiction pursuant to the Rehabilitation Act and the Genetic Information Nondiscrimination Act. See ECF No. 37 at 2. The FAC, however, does not allege that Hobbs suffered discrimination based on a disability or his genetic information, as required under those two statutes, and the Court does not address any claims under those statutes herein.
Finally, the Court observes that, while Hobbs purports to assert claims against Haaland and Kendall and to allege various constitutional violations, see ECF No. 37 at 1-2, Hobbs's Bivens claims were dismissed with prejudice in October 2023 and are not addressed further herein. See ECF No. 32 at 21.
1. Failure to Exhaust Administrative Remedies
Hobbs alleges many instances of discrimination between 2013 and 2019, but has failed to exhaust his administrative remedies as to all but two incidents of non-selection in April and July 2018 and three allegations of discrimination in February and October 2018.
Under Title VII and the ADEA, “federal employees must first exhaust their administrative remedies before they may bring suit in federal court.” Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992); Smith v. Potter, 400 Fed.Appx. 806, 809-10 (5th Cir. 2010). “Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information,” like Hobbs, “must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” 29 C.F.R. § 1614.105(a).
“Failure to notify the EEO counselor in timely fashion may bar a claim, absent a defense of waiver, estoppel, or equitable tolling.” Pacheco, 966 F.2d at 905. The agency “shall extend the 45-day time limit” if the claimant “shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency.” 29 C.F.R. § 1614.105(a)(2). “The plaintiff bears the burden of presenting facts which, if true, would require a court as a matter of law to estop the defendant from asserting the statute of limitations.” McGregor v. La. State Univ. Bd. of Sup'rs, 3 F.3d 850, 865 (5th Cir. 1993) (internal quotation marks omitted).
The administrative record shows that Hobbs contacted the DOI's EEO on April 18, 2018, complaining of many instances of alleged harassment and non-selection from 2013 to 2018. See ECF No. 42-1 at 4-7. All but three incidents of non-selection and four instances of alleged discrimination in 2018 fell outside the 45-day reporting period, described below. See id. at 11 (letter from Chief of BLM EEO office). During the initial interview with an EEO counselor, “[w]hen asked to provide a reason why he did not timely report these incidents within 45 days to the appropriate agency EEO official,” Hobbs “stated his reason was fear of further reprisal and hopes that ongoing issues would cease.” Id. at 7. This alleged fear did not toll his 45-day deadline. See id.; 29 C.F.R. § 1614.105(a)(2).
“[A] court ruling on a 12(b)(6) motion may rely on . . . matters of which a court may take judicial notice,” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (internal quotation marks omitted), including administrative records, see Green v. McDonough, No. SA-22-CV-00423-JKP, 2022 WL 17330852, at *3 (W.D. Tex. Nov. 28, 2022) (“[T]he Court may take judicial notice of the administrative records as public reports.”). “Any reference to EEOC documents, therefore, does not convert Defendant's 12(b)(6) motion into a motion for summary judgment.” Prewitt v. Cont'l Auto., 927 F.Supp.2d 435, 447 (W.D. Tex. 2013).
Hobbs has failed to properly exhaust administrative remedies with respect to four incidents of non-selection that occurred in 2019. ECF No. 37-3 at 27. Hobbs alleges that he applied for four different DOI positions in 2019 but was not selected based on his protected characteristics. ECF No. 37-3. The Equal Employment Opportunity Commission's (“EEOC”) Administrative Judge Alissa D. Rodriguez granted summary judgment on those claims against Hobbs on December 2, 2020. ECF No. 42-2. Pursuant to 29 C.F.R. § 1614.402, Hobbs had thirty days to appeal that decision to the Commission's Office of Federal Operations from the time he received the EEOC's final order (or expiration of the agency's 40-day window for reviewing the Administrative Judge's decision). Id. at 2. Hobbs did not appeal the decision to the Commission until November 14, 2021, nearly one year after the final order. ECF No. 42-3.
While his appeal was pending, Hobbs filed a civil action against Defendants. ECF No. 424. As a result, the Commission dismissed his appeal. Id. Hobbs's failure to exhaust his appeal as to the allegedly discriminatory acts in 2019 is dispositive of his claims under both Title VII and the ADEA premised on those events. As the Fifth Circuit has explained, plaintiffs in Title VII and ADEA actions “who seek EEOC review of the decision of whatever initial agency denied their claim must complete the course of review by the EEOC before filing a civil action.” Tolbert v. United States, 916 F.2d 245, 248 (5th Cir. 1990) (affirming summary judgment on Title VII claims because plaintiff filed her federal complaint while her EEOC appeal remained pending).
Hobbs otherwise fails to properly offer explanations for his delay, failing “to meet [his] burden to show that the EEOC should have applied equitable tolling to [his] appeal.” Wilson v. Sec'y, Dep't of Veterans Affs. on Behalf of Veterans Canteen Servs., 65 F.3d 402, 405 (5th Cir. 1995), as amended on denial of reh'g (Nov. 1, 1995).
Accordingly, the Court turns to the only claims that Hobbs has administratively exhausted: the two instances of non-selection for positions in the DOI-“WO Merit-2018-0028” and “NV Merit-2018-0211”-and three allegedly discriminatory acts in 2018. In his EEOC proceedings, Hobbs alleged that, while he was working at the BLM in 2018, he was discriminated against and harassed when he was (1) falsely accused of sexual harassment by a female co-worker, (2) told by his district manager that he was not “supervisory material,” and (3) aggressively chastised by a supervisor, Randall Anderson, who threatened to terminate Hobbs. ECF No. 42-1 at 11.
The letter from Chief of BLM EEO office also indicates that Hobbs timely reported that he was not selected for a third position-“NM Merit 2018-0025”-and was denied training to attend a conference and placed on administrative leave, see ECF No. 42-1 at 11, but these allegations do not appear anywhere in the FAC.
2. Disparate Treatment under Title VII and the ADEA
“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. In such disparate-treatment cases, proof and finding of discriminatory motive is required.” Pacheco v. Mineta, 448 F.3d 783, 787 (5th Cir. 2006). Similarly, “[t]o establish liability under the ADEA, a plaintiff must show . . . that he is within the protected class of the ADEA[, i,e., over 40 years old,] and the defendant discharged, refused to hire, or otherwise discriminated against the plaintiff with respect to compensation, terms, conditions, or privileges of employment, because of the plaintiff's age.” McCann v. Tex. City Ref., Inc., 984 F.2d 667, 672 (5th Cir. 1993).
A plaintiff can prove a discriminatory motive through either direct or circumstantial evidence. Portis v. First Nat'l Bank of New Albany, Miss., 34 F.3d 325, 328 (5th Cir. 1994). When a plaintiff builds a case on circumstantial evidence, a court analyzes the plaintiff's claim under the McDonnell Douglas framework. See Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). “Under this framework, the plaintiff must first create a presumption of discrimination by making out a prima facie case of discrimination.” Id. A prima facie case of discrimination requires evidence that the plaintiff (1) is a member of a protected group; (2) was qualified for the position at issue; (3) suffered some adverse employment action by the employer; and (4) was replaced by someone outside [her] protected group or was treated less favorably than other similarly situated employees outside the protected group. Morris v. Town of Indep., 827 F.3d 396, 400 (5th Cir. 2016) (quoting Willis v. Cleco Corp., 749 F.3d 314, 319-20 (5th Cir. 2014)).
The Supreme Court has distinguished the McDonnell Douglas evidentiary standard from pleading requirements, however. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002). Accordingly, “a plaintiff need not make out a prima facie case of discrimination [under McDonnell Douglas] in order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013). A district court therefore errs by requiring “a showing of each prong of the prima facie test for disparate treatment at the pleading stage[.]” Id. Still, plaintiffs must “plead sufficient facts on all of the ultimate elements of a disparate treatment claim to make [their] case plausible.” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016).
The Fifth Circuit has explained that 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.” Raj, 714 F.3d at 331 (quoting Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 576 (5th Cir. 2004)); Pacheco, 448 F.3d at 787 (a “discriminatory motive is required” for disparate treatment claims). The Fifth Circuit has counseled that “it can be ‘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. Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019) (citing Chhim, 836 F.3d at 470-71 (considering whether the plaintiff pleaded facts suggesting that the employer hired an applicant who was “similarly situated” to the plaintiff or “less qualified” than the plaintiff in accordance with the McDonnell Douglas framework)).
Still, courts must not inappropriately heighten the pleading standard in Title VII cases by “subjecting plaintiff's allegations to a rigorous factual or evidentiary analysis under the McDonnell Douglas framework in response to a motion to dismiss.” Id. (citing Swierkiewicz, 534 U.S. at 512). Under both Title VII and the ADEA, “all that [is] required at the motion to dismiss stage [is] that [the plaintiff] plead facts that support an inference that she [suffered an adverse employment action] ‘because of her protected status.'” Thomas v. Dallas Indep. Sch. Dist., No. 23-10882, 2024 WL 2874367, at *5 (5th Cir. June 7, 2024) (quoting Cicalese, 924 F.3d at 767).
The Court observes that, although the USAF is named as a defendant in the FAC, Hobbs has not specifically identified any discriminatory or retaliatory activity by the USAF other than his vague and conclusory assertion that the “Secretary of the Air Force . . . either willingly or negligently engaged in . . . the conspiracy commended by [the DOI] . . . [to] achieve [the DOI]'s ultimate conspiratorial objective, to namely not only terminate [Hobbs's] federal employment with extreme malice and prejudice, but ‘blacklist' him from all forms of meaning employment, thereafter in perpetuity.” ECF No. 37 at 5. This is insufficient to support any claim of employment discrimination or retaliation against the USAF.
Turning to Hobbs's claims against the DOI, the Court observes that much of the challenged conduct simply does not qualify as materially adverse, despite recent expansions of the universe of actionable claims by the Supreme Court and the Fifth Circuit. See Muldrow v. City of St. Louis, 144 S.Ct. 967, 974 (2024) (“[A] transferee does not have to show, according to the relevant text, . . . that the harm incurred was ‘significant[,]' . . . [o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.”); Hamilton v. Dallas County, 79 F.4th 494 (5th Cir. 2023). A plaintiff no longer needs to identify to an “ultimate employment decision” to establish a claim for disparate treatment but can instead show discrimination in the “terms, conditions, or privileges” of his or her employment. Hamilton, 79 F.4th at 502-03.
Although the Fifth Circuit declined to provide a minimum standard for adverse actions in Hamilton, it later clarified in Harrison that an adverse employment action requires: (1) employment discrimination-the “adversity” requirement-that (2) causes the plaintiff a non-de minimis injury-the “materiality” requirement. Harrison, 82 F.4th at 430. The materiality requirement ensures that the Fifth Circuit's relaxed definition of adversity will not “transform Title VII into a general civility code for the American workplace.” Hamilton, 79 F.4th at 504-05 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). The challenged action must not only “involve[] a meaningful difference in the terms of employment” but also “injure[] the affected employee.” Harrison, 82 F.4th at 431 (citing Threat v. City of Cleveland, 6 F.4th 672, 678 (6th Cir. 2021)).
Even after Hamilton, the Fifth Circuit has confirmed that written reprimands, placement on a performance improvement plan (“PIP”), and other corrective or remedial measures do not constitute adverse employment actions unless they “affect job title, grade, hours, salary, or benefits or cause a diminution in prestige or change in standing among coworkers.” Lemonia v. Westlake Mgmt. Servs., Inc., No. 22-30630, 2023 WL 6878915, at *7 (5th Cir. Oct. 18, 2023) (cleaned up) (citing Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 823, 826 (5th Cir. 2019), abrogated on other grounds by Hamilton, 79 F.4th at 502-06); see id. at *7 (“[T]he district court did not err to the extent the court concluded that Lemonia's placement on a PIP, without more, did not constitute an adverse employment action.”).
Hobbs's allegations that he was chastised by a supervisor and told by a manager that he was not “supervisory material” are not adverse employment actions. See Lemonia, 2023 WL 6878915, at *7. While a false report of sexual misconduct in the workplace might “cause a diminution in prestige or change in standing among coworkers,” nothing in the FAC suggests that someone with supervisory authority over Hobbs was responsible for such a report. See ECF No. 37 at 8. Rather, Hobbs reported that the allegedly false accusation had been made by a “female coworker.” ECF No. 42-1 at 6.
As for the two incidents of non-selection in 2018, Plaintiff offers no specific facts to support his claim that he not chosen for those positions due to his sex or age, but merely alleges that he “suffered from . . . unlawful discriminatory non-selections, in favor of significantly lesser qualified candidates, or younger candidates, and/or deliberate selection of female candidates of the opposite sex.” See ECF No. 37 at 7. This conclusory assertion fails to state a claim for disparate treatment under Title VII or the ADEA.
3. Hostile Work Environment under Title VII and the ADEA
To prevail on a hostile work environment claim, a plaintiff must establish that: (1) he is a member of a protected group; (2) he was subject to unwelcome harassment; (3) the harassment complained of was based on his membership in the protected group; (4) the harassment affected a term, condition, or privilege of his employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)) (Title VII); Reed v. Neopost USA, Inc., 701 F.3d 434, 442-43 (5th Cir. 2012) (ADEA).
“To affect a term, condition, or privilege of employment, the harassment must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. The alleged conduct must be objectively and subjectively hostile or abusive.” West v. City of Houston, 960 F.3d 736, 741-42 (5th Cir. 2020) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). In determining whether conduct creates a hostile work environment, courts must consider the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interfered with the plaintiff's job performance. Id.
Given his many references to “constructive discharge,” the Court does not doubt that Hobbs subjectively perceives that his treatment at the DOI was abusive. But the FAC offers no specific examples of harassing conduct that would permit the Court to assess its severity and pervasiveness, let alone conclude that Hobbs was subject to such treatment because of his protected characteristics. For example, Hobbs asserts that he was “subjected to public humiliation and ridicule by peer employees at the annual 2015 Christmas party,” without any allegations addressing the nature or severity of that ridicule. ECF No. 37 at 12. Hobbs's numerous, conclusory references to “humiliation,” “ridicule,” and “harassment” fail to state a claim for hostile work environment under Title VII or the ADEA.
4. Retaliation under Title VII and the ADEA
Title VII prohibits retaliation against an employee for engaging in conduct protected by Title VII. Laster v. City of Kalamazoo, 746 F.3d 714, 729 (6th Cir. 2014). To establish a claim for retaliation under Title VII, the plaintiff must show that (1) he engaged in a protected activity; (2) there was a materially adverse action; and (3) a causal connection exists between the protected activity and the adverse action. Jenkins v. City of San Antonio Fire Dep't, 784 F.3d 263, 269 (5th Cir. 2015). “A retaliation claim under the ADEA entails the same showing.” English v. Perdue, 777 Fed.Appx. 94, 98 (5th Cir. 2019).
“Protected activity” under Title VII is defined as “opposition to any practice made unlawful by Title VII, including making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII.” Green v. Admins. of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002), as amended on denial of reh'g and reh'g en banc (Apr. 26, 2002) (citing 42 U.S.C. § 2000e-3(a)). The retaliation provisions of Title VII “protect[] not only the filing of formal discrimination charges with the EEOC, but also complaints to management and less formal protests of discriminatory employment practices.” Laster, 746 F.3d at 730.
“For an employer's act to qualify as a materially adverse action, ‘a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'” Cabral v. Brennan, 853 F.3d 763, 767 (5th Cir. 2017) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
Close timing between an employee's protected activity and an adverse action against him may provide the “causal connection” required to make out a prima facie case of retaliation. Swanson v. Gen. Serv. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (citing Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993)). There is no bright-line rule in the Fifth Circuit for determining whether the time between the protected activity and the allegedly retaliatory conduct is too remote. See Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (noting that “a time lapse of up to four months has been found sufficient” evidence of a causal connection).
Hobbs alleges that the DOI retaliated against him for his reports of “potential misconduct against certain federally recognized Indian tribes” and “additional fraud waste and abuse” between 2016 and 2018. See ECF No. 37 at 4-5. To begin, it is not clear that any of these reports qualify as protected activities under Title VII or the ADEA because the FAC does not specify that the complaints addressed discriminatory employment practices by the BLM against Native Americans, rather than the discriminatory impact of BLM policies and programs on Native Americans. Neither Title VII nor the ADEA provides all-purpose, blanket protection from retaliation for whistleblowing generally; rather, they protect employees from retaliation for opposing the kind of employment discrimination prohibited by the respective statutes. See Rodriquez v. Wal-Mart Stores, Inc., 540 Fed.Appx. 322, 328 (5th Cir. 2013) (concluding that, while opposition to discrimination need not be in formal written form, the plaintiff's internal complaints to management did not constitute a protected activity because “they did not reference discrimination or any other unlawful employment activity” (emphasis added)).
Even assuming that Hobbs complained of discriminatory employment practices at some point between 2016 and 2018, the Court cannot reasonably infer a causal connection to nonselections in 2018 and 2019 based on alleged temporal proximity to some unspecified date. See Rodriquez, 540 Fed.Appx. at 329 (“Absent more of an explanation for how her October 2009 complaint caused her July 2010 termination, the nine-month gap between the two events negates any inference of a causal link.”). More importantly, nothing in the FAC suggests that those responsible for hiring decisions at the DOI knew about any of the grievances Hobbs filed. In short, Hobbs has failed to state a plausible claim of retaliation under either Title VII or the ADEA.
In sum, Hobbs has failed to comply with the Court's order limiting his complaint to employment claims only against the DOI and USAF and to 20 pages in length. As for his employment claims, he failed to administratively exhaust many of the allegedly discriminatory and retaliatory acts described in the complaint and has otherwise failed to state a plausible claim for relief under Title VII or the ADEA. Accordingly, Defendants' motion to dismiss the FAC under Rule 12(b)(6) (ECF No. 42) is GRANTED.
II. Motion for Leave to File an Amended Complaint
A. Legal Standard
The Federal Rules of Civil Procedure permit liberal amendment of pleadings. Rule 15(a) provides that “a party may amend its pleading with . . . the court's leave” and that “[t]he court should freely give leave when justice so requires.” FED. R. CIV. P. 15(a)(2). Although a district court should generally give a plaintiff at least one chance to amend under Rule 15(a), it is within the sound discretion of the district court to grant or deny a motion based on “a variety of factors including undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of the amendment.” Marucci Sports, L.L.C. v. Nat'l Collegiate Athletic Ass'n, 751 F.3d 368, 378 (5th Cir. 2014) (internal quotation marks omitted); see also Legate v. Livingston, 822 F.3d 207, 211 (5th Cir. 2016) (While “the language of [Rule 15(a)] evinces a bias in favor of granting leave to amend, . . . a district court need not grant a futile motion to amend.”) (internal quotation marks and citations omitted).
A proposed amendment is futile if the complaint, as amended, would be subject to dismissal. See Stripling v. Jordan Prod. Co., 234 F.3d 863, 872-73 (5th Cir. 2000). Thus, the Court reviews the proposed amended complaint under the standard of legal sufficiency set forth under Rule 12(b)(6). Marucci Sports, 751 F.3d at 378.
B. Analysis
Hobbs's proposed amendment is 23 pages long but incorporates by reference a 64-page exhibit titled “Plaintiff's 3rd Amended Complaint.” See ECF Nos. 47-1 at 1; ECF No. 47-2. Thus, Hobbs's proposed amendment is nearly 90 pages long-70 pages longer than the limit set forth in the Court's October 2023 order. See ECF No. 32 at 22-23. Here again, the Court declines to consider the exhibits attached to Plaintiff's motion beyond the first 20 pages of the proposed complaint. See Odem, 2023 WL 4854814, at *1; Perry, 2017 WL 3634189, at *2; Yohey, 985 F.2d at 225; see ECF No. 47-1.
The Court has already allowed Hobbs to file an amended complaint, with explicit instructions as to page limits and the factual allegations he would need to include to cure the deficiencies in his original pleadings. See ECF No. 32 at 22-23. “Rule 15(a) authorizes one amendment as a matter of course; after that has happened, a complaint may be amended only by leave of the district court.” Lander v. JPMorgan Chase Bank Nat'l Ass'n, No. 421CV00353ALMCAN, 2022 WL 21778360, at *1 (E.D. Tex. Feb. 23, 2022) (internal quotation marks omitted).
Hobbs “appears to have interpreted Rule 15 to mean that after the filing of every motion to dismiss he is permitted to amend his complaint ‘as a matter of course'.” Lander v. JPMorgan Chase Bank Nat'l Ass'n, No. 421CV00353ALMCAN, 2022 WL 21778360, at *1 (E.D. Tex. Feb. 23, 2022); see ECF No. 47 at 3-4. “This is simply incorrect. Rule 15(a) authorizes one amendment as a matter of course; after that has happened, ‘a complaint may be amended only by leave of the district court.'” Lander, 2022 WL 21778360, at *1 (quoting U.S. ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 387 (5th Cir. 2003)); see also 6 FED. PRAC. & PROC. CIV. § 1480 (3d ed.) (“When . . . the party already has amended the pleading, [Rule 15(a)(1)] no longer applies and an amendment falls under Rule 15(a)(2), which requires leave of court or the written consent of the opposing party.”)
The proposed amendment is futile because it does not cure the deficiencies identified in the FAC. Marucci Sports, 751 F.3d at 378. For example, despite being purportedly drafted in response to Defendants' motion to dismiss the FAC, the proposed complaint recites a litany of claims premised on events between 2015 and 2018 for which Hobbs failed to exhaust his administrative remedies. It also continues to rely on a “conspiracy” theory of employment discrimination that the Court has already rejected. The proposed pleading names over a dozen federal employees and alleges in a conclusory manner that Defendants had a “meeting of the minds” to discriminate against him See ECF No. 47-1 at 11-12. Hobbs's proposed amendment lumps numerous federal employees together, without allegations of individualized conduct, and it is unclear whether any of the federal employees even interacted in any manner.
Although it is not entirely clear from the proposed amended complaint, it appears that, in 2018, Hobbs began to apply for other BLM postings to avoid working with a subordinate employee who had accused him of sexual harassment. He applied for at least three positions for which he was not selected: “NM Merit-2018-0025,” “WO Merit-2018-0028,” and “NV Merit-2018-0211.” See id. at 22-23. None of the positions are described in the proposed complaint.
Hobbs does not provide any information about the hiring process or who was selected for the first position. As for the second, he states that DOI officers selected “Ms. Lindsy Cornutt, female, without prior EEO experience, aged under 40 (~32)” for the position rather than Hobbs. Id. at 17. It is not clear to the Court how lack of “EEO experience” would render Ms. Cornutt less qualified than Mr. Hobbs, an engineer, for the position at issue, especially because the position is not described anywhere in the complaint. Thus, Plaintiff has failed to state a claim of discrimination based on his non-selection for either the first or second position. As for the third position, Hobbs alleges that it was filled by “a significantly younger, less experienced, female with no prior government or BLM experience[.]” Id. at 11. His assertions that this unidentified comparator was “significantly younger” and “less qualified” than Hobbs are conclusory. Again, because Hobbs offers no description of the position, the Court cannot infer that the comparator was less qualified for the position-it is not clear that “government or BLM experience” were even relevant qualifications. Cf. Thomas, 2024 WL 2874367, at *5 (a 55-year-old teacher with 25 years of experience as an educator, 12 years as an Instructional Coach, and a master's degree plausibly alleged that she was not hired for Assistant Principal or Instructional Coach positions “because of” her age when the positions were filled by low-performing candidates in their 30s, only a few years out of college, one of whom had been coached by the plaintiff).
To the extent that Hobbs claims that these incidents of non-selection occurred in retaliation for his EEO activity, he fails to allege any specific facts showing that the applicable hiring officers were aware of his EEO complaints when they made their hiring decisions. His conclusory assertions of “collusion” are insufficient to state a plausible retaliation claim.
Finally, Hobbs appears to allege that the USAF continued a course of retaliatory conduct on behalf of the DOI. He fails, however, to plausibly allege any facts suggesting that that the USAF was aware of Hobbs's EEO activities involving the DOI.
It would be futile to permit Hobbs to file the proposed amended complaint because it fails to cure the deficiencies in the FAC, fails to comply with the parameters set forth in the Court's October 2023 order, and would itself be subject to dismissal under the pleading standards set forth in Rule 8. Marucci Sports, 751 F.3d at 378. Accordingly, Hobbs's motion for leave to file a Third Amended Complaint (ECF No. 47) is DENIED.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss (ECF No. 42) is GRANTED.
Plaintiff's motion for leave to file his Third Amended Complaint (ECF No. 47) is DENIED as futile.
Plaintiff's claims against Defendants are DISMISSED WITH PREJUDICE. A final judgment will be issued in each consolidated case pursuant to Rule 58.
Plaintiff's motion to stay the case pending resolution of his motion for leave to file an amended complaint (ECF No. 49) is DENIED AS MOOT in light of the Court's rulings on the parties' motions.
The Clerk is DIRECTED to CLOSE this case.
The Clerk is FURTHER DIRECTED to mail a copy of this Order and the Final Judgments in each underlying case to Lawrence Hobbs, P.O. Box 1880, Canyon Lake, Texas 78133.
It is SO ORDERED.