Noakes v. Department of Homeland Security

Filing 32

ORDER AND REASONS: GRANTING 13 Motion to Dismiss. Signed by Magistrate Judge Janis van Meerveld on 3/11/2025. (lb)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ALEJANDRO N. MAYORKAS,
SECRETARY, DEPARTMENT
OF HOMELAND SECURITY

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DANA NOAKES
VERSUS

CIVIL ACTION
NO. 23-447
DIVISION: “1”
MAGISTRATE JUDGE
JANIS VAN MEERVELD

Order & Reasons
Before the Court is the Defendant, Secretary for the Department of Homeland Security,
Alejandro Mayorkas’s, Motion to Dismiss Parties for Lack of Subject Matter Jurisdiction1 and
Failure to State a Claim. (Rec. Doc. 13).2 Plaintiff, Dana Noakes, opposes the Motion. (Rec. Doc.
14). Defendant filed a Reply Brief in support of his Motion to Dismiss. (Rec. Doc. 19). For the
following reasons, the Motion to Dismiss is GRANTED.

Defendant styles this as a Motion to Dismiss Parties for Lack of Subject Matter Jurisdiction and Failure
to State a Claim, and in the “Standards of Review” section, Defendant cites to Rule 12(b)(1), noting it
applies when “the court lacks the statutory or constitutional power to adjudicate the case.” (Rec. Doc. 13-1
at 4). The Motion’s last sentence states, “Plaintiff’s Title VII claims against TSA (Counts I-III) must be
dismissed for lack of subject matter jurisdiction or for a failure to state a claim.” (Rec. Doc. 13-1 at 14). Yet
nowhere does Defendant ever explain why this Court lacks subject matter jurisdiction. As Plaintiff points
out in opposition, “the claims in Ms. Noakes’ complaint arise out of the laws or Constitution … of the
United States.” (Rec. Doc. 14 at 6 (citing 28 U.S.C. § 1331)). Federal question claims can be dismissed for
lack of subject matter jurisdiction (rather than failure to state a claim) only when the claim is not even
“colorable,” i.e., it is wholly insubstantial and frivolous or is immaterial and made solely for purposes of
obtaining jurisdiction. Bell v. Hood, 327 U.S. 678, 682-83 (1946). Defendant does not satisfy this standard
nor does Defendant address the jurisdiction issue in his reply. Therefore, the Court finds that it has subject
matter jurisdiction over the claim and focuses only on Defendant’s argument relating to failure to state a
claim.
2
The parties consented to proceed before the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c).
(Rec. Doc. 25).
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Background
This is an employment discrimination dispute. The following facts are as alleged by
Plaintiff, Dana Noakes, in her Complaint, to the extent that the facts in her Complaint are relevant
to the claims currently before this Court.3
Noakes, a white female, was employed by the Transportation Security Administration
(“TSA”) for over thirteen years, the last six of which she held the position of Supervisory
Transportation Security Officer (“STSO”). (Rec. Doc. 1 at ¶ 6). During her employment with TSA,
Noakes applied for three promotions. On or about December 20, 2021, she was denied a promotion
for Transportation Security Manager (“TSM”). (Id. at ¶ 78). Instead of Noakes, TSA selected a
non-white employee with no known history of any Equal Employment Office (“EEO”) complaints
to fill the position. (Id.) Then, “sufficient time elapsed” that she was “effectively denied” the other
two promotions. Noakes, who previously lodged an EEO complaint in May of 2021, alleges that
TSA improperly took into account her filing of an EEO complaint, its subsequent dismissal, her

Noakes’ Complaint confusingly includes claims and related facts from her previous District Court case
that was based on her first EEO complaint and that was dismissed by the Court on the merits. Compare Civ.
Action No. 22-213, Rec. Doc. 1 with Rec. Doc. 1 at ¶¶ 1–77; see Noakes v. Dep’t of Homeland Sec., No.
CV 22-213, 2022 WL 11435959 (E.D. La. Oct. 18, 2022) (dismissing with prejudice Noakes’ claims
stemming from her first EEO complaint). She claims the inclusion is for “necessary context” but admits
that her Complaint in the instant case is filed only as to her second EEO complaint. (Rec. Doc. 14 at p. 11
n.1). Facts forming the basis of claims previously adjudicated by the District Court are moot, however, and
are excluded from the factual recitation here. While “workplace conduct is not measured in isolation” and
courts consider untimely prior discriminatory acts of an employer in the Title VII context, see Ramsey v.
Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270
(2001)); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (finding that Title VII does not
bar an employee from using prior acts as background evidence in support of a timely claim), Noakes’
Complaint includes facts that were previously dismissed with prejudice—not simply untimely. Therefore,
these facts should not be relitigated. Anthony v. Marion Cty. Gen. Hosp., 617 F.2d 1164, 1170 (5th Cir.
1980) (“. . . dismissal with prejudice is deemed an adjudication on the merits for the purposes of res
judicata.”); Kaspar Wire Works, Inc. v. Leco Eng’g & Mach, Inc., 575 F.2d 530, 534 (5th Cir. 1978) (“. . . a
dismissal with prejudice at any stage of a judicial proceeding, normally constitutes a final judgment on the
merits which bars a later suit on the same cause of action.”). And even if the Court were to consider the
previously dismissed facts, those facts have already been determined to be unrelated to Noakes’ race—a
requirement for most of her claims here. Noakes, 2022 WL 11435959, at *8–10, 24–25.
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race (white), and that TSA predetermined to choose a non-white employee for a promotion.
According to Noakes, she was objectively qualified for the promotion and would have been
selected had she not lodged the EEO complaint. (Id. at ¶ 80, 119).
Noakes alleges that TSA then “began auditing Noakes’s hours in an attempt to later,
pretextually, terminate her.” (Id. at ¶ 81). As a result of this “audit,” TSA instructed Noakes via a
December 22, 2021 letter that she would not be allowed any further Family Medical Leave Act
(“FMLA”) leave after February 17, 2022, the end date of her 90-day approved leave period. (Id.
at ¶ 84). In their letter, TSA explained that although Noakes only used 80 of her 480 hours of
FMLA leave, she also took 764 hours of non-FMLA leave, most of which were Leave Without
Pay (“LWOP”). The letter stated that Noakes had a concerning 100% scheduled absentee rate over
the past six months, excluding her entitlement to FMLA. Noakes’ LWOP, the letter explains, was
causing an undue burden on operations and to her co-workers, resulting in a need to deny her
further LWOP. (Rec. Doc. 13-4, 13-3 at p. 8).
On or about February 24, 2022, TSA took Noakes off FMLA leave and coded her as Absent
Without Leave (“AWOL”). (Rec. Doc. 1 at ¶ 85). Noakes alleges that she was entitled to FMLA
qualified leave, as she had only used 80 of the 480 allowed hours of FMLA leave. According to
Noakes, TSA denied her further leave in retaliation for comments Noakes made on social media,
prior complaints against her coworkers, and her EEO complaint.
On or around September 10, 2022, Blue Cross Blue Shield, Noakes’ health insurance
provider through TSA, sent her a letter stating that her coverage was cancelled by TSA. One month
later, TSA issued a letter to Noakes explaining that it cancelled her health insurance through TSA
but that she could retain health insurance if she resigned. Noakes alleges that she was “forced to
choose resignation” and was “constructively terminated” when faced with the loss of health

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insurance versus the prospect of regaining health insurance if she resigned. She proceeded to resign
on October 11, 2022. (Id. at ¶ 86–89).
Based on the aforementioned events, Noakes began the EEO complaint process. On or
around November 8, 2022, Noakes received the Final Agency Decision as to her EEO complaint,
finding that Noakes failed to prove that TSA discriminated against her and entitling her to file the
instant Complaint within 90 days. (Id. at ¶ 101); (Rec. Doc. 13-3 at p. 11). The instant Complaint,
filed against the Secretary for the Department of Homeland Security, Alejandro Mayorkas, alleges
that she was subjected to unlawful (1) hostile work environment based on race, (2) retaliation based
on prior protected complaints, (3) and race discrimination—all in violation of Title VII. (See
generally Rec. Doc. 1). Additionally, she alleges that she was constructively discharged. (Id. at
¶ 89). Mayorkas now moves to dismiss the Complaint for lack of subject matter jurisdiction and
failure to state a claim. (Rec. Doc. 13).
Law and Analysis
1. Standard on a Motion to Dismiss
Rule 12(b)(6) allows a defendant to move for dismissal when a plaintiff fails to state a
claim upon which relief can be granted. In ruling on such a motion, “[t]he court accepts all wellpleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quotation marks omitted). However, “[t]o
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead sufficient facts to state a claim
to relief that is plausible on its face.” Id. Courts “do not accept as true conclusory allegations,
unwarranted factual inferences, or legal conclusions.” Plotkin v. IP Axess Inc., 407 F.3d 690, 696
(5th Cir. 2005) (citing Southland Sec. Corp. v. INSpire Ins. Sols., Inc., 365 F.3d 353, 361 (5th Cir.
2004)); see also Webb v. Morella, 522 F. App’x 238, 241 (5th Cir. 2013) (quoting Fernandez-

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Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993) (“[C]onclusory allegations or legal
conclusions masquerading as factual conclusions will not suffice to prevent a motion to
dismiss.”)). “Factual allegations must be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”
In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (citation, footnote, and quotation marks
omitted). On that point, the United States Supreme Court has explained:
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. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of
entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotation marks omitted).
In the employment discrimination context, the Supreme Court has held that to survive a
motion to dismiss, a plaintiff need not plead facts sufficient to establish a prima facie case, as
required under the seminal McDonnell Douglas framework applicable to the burden of proof in
Title VII cases. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 511 (2002) (“This Court has never indicated that the requirements
for establishing a prima facie case under McDonnell Douglas also apply to the pleading standard
that plaintiffs must satisfy in order to survive a motion to dismiss [in a Title VII case].”); see also
Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013) (citing Swierkiewicz, 534 U.S. at 510–
12). Although the Court rendered Swierkiewicz before it clarified the pleading standard in Twombly
and Iqbal, Swierkiewicz’s primary holding—that a plaintiff need not establish a prima facie case
at the pleading stage—is still good law. See Twombly, 550 U.S. at 555.

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“In considering a motion to dismiss for failure to state a claim, a district court must limit
itself to the contents of the pleadings, including attachments thereto.” Collins v. Morgan Stanley
Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). The Fifth Circuit has recognized that the court
may also consider documents attached to a motion to dismiss by the defendant or an opposition to
that motion if they are referred to in the plaintiff’s complaint and central to her claim. Id. at 49899; Walch v. Adjutant General’s Dep’t of Tex., 533 F.3d 289, 293–94 (5th Cir. 2008) (considering
exhibits attached to an opposition because “[n]o party questions the authenticity of these two
documents and both were sufficiently referenced in the complaint to permit their consideration on
a motion to dismiss”). For example, in Carter v. Target Corp., the court held that the district court
was permitted to consider the EEOC charges attached to the defendant’s motion to dismiss because
they were referenced in the plaintiff’s complaint and were central to plaintiff’s claim. 541 F. App’x
413, 417 (5th Cir. 2013).
2. Noakes’ Complaint Fails to State a Cognizable Title VII Hostile Work Environment Claim
(Count I)
To establish a hostile-work-environment claim, the employee must establish that:
(1) [she] belongs to a protected group; (2) [she] was subjected to unwelcome
harassment; (3) the harassment complained of was based on race; (4) the
harassment complained of affected a term, condition, or privilege of employment;
(5) the employer knew or should have known of the harassment in question and
failed to take prompt remedial action.
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). Harassment affects a “term, condition,
or privilege” of employment when it is so severe or pervasive that it alters the conditions of
employment and “create[s] an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 67 (1986) (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). In
determining “whether a hostile work environment existed, a court must consider ‘the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
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mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.’” Moore v. United Parcel Serv., Inc., 150 F. App’x 315, 319 (5th Cir. 2005) (quoting
Ramsey, 286 F.3d 264, 268). An isolated offensive utterance is not sufficient to demonstrate a
hostile work environment due to a protected characteristic. Weller v. Citation Oil & Gas Corp., 84
F.3d 191, 194 (5th Cir. 1996) (quoting DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d
591, 595 (5th Cir. 1995)) (“[T]he ‘mere utterance of an . . . epithet which engenders offensive
feelings in an employee is insufficient, without more, to support Title VII liability.”); see Jones v.
Cont’l Cuisine, Inc., 353 F. Supp. 2d 716, 720–21 (E.D. La. 2004) (finding the plaintiff had not
established a race based hostile work environment where the only evidence to support a racially
hostile work environment was a manager’s alleged use of the “n word” during one meeting). A
hostile work environment must be found to “be both objectively and subjectively offensive.”
Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).
Noakes’ Complaint states that “TSA further fostered and permitted a severe and pervasive
hostile work environment based on race, as evidenced by: . . . (9) auditing and restricting Ms.
Noakes’s FMLA hours; (10) denying her multiple promotions and giving at least one position to a
non-white employee; and (11) constructively terminating her by withholding her health insurance
unless she resigned.”4 (Rec. Doc. 1 at ¶ 107). Mayorkas, in the instant Motion to Dismiss, argues
that Noakes fails to establish that she was subjected to severe or pervasive racial discrimination or
that she was a victim of an “anti-white racial motive.” Further, he argues that her allegations are
entirely conclusive, wholly speculative, and her only evidence that race is involved is her
subjective belief. (Rec. Doc. 13-1 at pp. 11-12). In her opposition, Noakes alleges—using facts

Noakes lists eight additional ways that TSA fostered and permitted a severe and pervasive hostile work
environment based on race. Those facts, however, are omitted here as they were previously dismissed by
the District Court on the merits and are now therefore moot. Noakes, 2022 WL 11435959 (dismissing with
prejudice Noakes’ claims stemming from her first EEO complaint).
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previously dismissed by the Court—that she was the victim of pervasive and severe race-based
harassment, despite asserting no facts correlating TSA’s actions to her race. Noakes reaches this
conclusion by arguing that differential treatment, such as what she suffered here when non-white
employees were allegedly treated more favorably, is sufficient to show racially motived conduct.
(Rec. Doc. 14 at pp. 15–18). Namely, in relevant part,5 that a non-white employee was given a
promotion that she applied for, that non-white employees did not have their FMLA hours audited
and restricted, and non-white employees were not constructively terminated. (Id.).
Even assuming that these incidents are properly considered incidents of harassment (as
opposed to disparate treatment incidents), which this Court strongly doubts, the Court finds that
Noakes fails to state a plausible claim for hostile work environment. The facts that Noakes pleads
do not support a finding that Noakes’ alleged harassment was because of her race and not some
other factor. Noakes’ Complaint is silent as to the animus of any of her alleged harassers, the races
of the two employees chosen for the other two promotions that she did not receive, and whether
non-white employees who received allegedly different treatment had comparable histories of leave
and absenteeism as Noakes. Indeed, no facts, other than Noakes’ subjective belief, suggest that
TSA’s conduct was motivated by race. Mere belief of racial discrimination, however, is not enough,
even at the motion to dismiss stage. See Richards v. JRK Prop. Holdings, 405 F. App’x 829, 831
(5th Cir. 2010) (unpublished) (finding that the plaintiff’s “belief that she was terminated because
of her race . . . is a legal conclusion that the court is not required to accept and does not suffice to
prevent a motion to dismiss.”); Sanchez v. Bexar Cty. Tex., No. 21-018, 2022 WL 209286, at *4
(W.D. Tex. Jan. 24, 2022) (citing Iqbal, 556 U.S. at 678) (“To survive a motion to dismiss, Sanchez

Omitted here are the same additional alleged instances of differential treatment based on race from
footnote 3 of this opinion. As noted above, those facts were previously dismissed by the District Court for
failure to state a cognizable claim of a hostile working environment based on race in violation of Title VII,
even under the liberal pleading standard of the Rule 12(b)(6) stage. Noakes, 2022 WL 11435959.
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must identify more than her subjective belief that she was discriminated against; she must describe
specific facts that support her claim that the [defendant] acted in an unlawfully discriminatory
manner.”). To assume that TSA’s conduct was related to Noakes’ race would be “too great of a
logical leap in the absence of any factual support.” Noakes v. Dep’t of Homeland Sec., No. CV 22213, 2022 WL 11435959, at *5 (E.D. La. Oct. 18, 2022).
Moreover, not only do the allegations of the Complaint fail to make any plausible
connection between the alleged harassment and Noakes’ race, they also do not rise to the level of
frequent and/or severe harassment required to state a claim. In sum, Noakes urges this Court to
“extrapolate from the lone fact that Noakes is white and her coworkers are not and conclude that
she was singled out for harassment.” Id. at *9. That, alone, is not enough to raise her claim above
the level of “naked assertion” to pass “the line between possibility and plausibility of entitlement
to relief.” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Legal conclusions,
unwarranted factual inferences, and a mere subjective belief of racial motivation is insufficient to
show a hostile work environment. Id. at *12-13; Marlbrough v. Cornerstone Chem. Co., No. CV
23-22, 2024 WL 1116177, at *6 (E.D. La. Mar. 14, 2024) (finding unspecified, conclusory
allegations of harassment based on race insufficient to establish a hostile work environment).
Accordingly, Noakes fails to state a plausible claim for hostile work environment.
3. Noakes’ Complaint Does Not State a Cognizable Title VII Retaliation Claim (Count II)
Under Title VII, it is an
[U]nlawful employment practice for an employer to discriminate against any of his
employees ... because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.

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42 U.S.C. § 2000e-3(a). “To state a Title VII retaliation claim, the Plaintiff must allege facts that
tend to establish: (1) she engaged in an activity protected by Title VII; (2) an adverse employment
action occurred; and (3) a causal link existed between the protected activity and the adverse
action.” Richards, 405 F. App’x at 831; see also Goings v. Lopinto, No. 22-2549, 2023 WL
2709826, at *9 (E.D. La. Mar. 30, 2023) (quoting Jenkins v. La. Workforce Comm’n, 713 F. App’x
242, 244 (5th Cir. 2017) (“Although a plaintiff need not make out a prima facie case of [retaliation]
in order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim,” the three primafacie elements have “some relevance at the motion-to-dismiss stage, because in order to
sufficiently state a Title VII-retaliation claim, a plaintiff must plead sufficient facts on all of the
ultimate elements to make her case plausible.”)).
As to the first element, “[p]rotected activity can consist of either: (1) ‘oppos[ing] any
practice made an unlawful employment practice by this subchapter’ or (2) ‘ma[king] a charge,
testif[ying], assist[ing], or participat[ing] in any manner in an investigation, proceeding, or hearing
under this subchapter.” E.E.O.C. v. Rite Way Serv., Inc., 819 F.3d 235, 239 (5th Cir. 2016) (quoting
42 U.S.C. § 2000e-3(a)) (alteration in original). As to the second element, an action is materially
adverse for purposes of a retaliation claim if the action “might have ‘dissuaded a reasonable worker
from making or supporting a charge of discrimination.’” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).
A showing of “material” adversity is required to “separate significant from trivial harms” because
Title VII is not a general civility code, and “[a]n employee’s decision to report discriminatory
behavior cannot immunize that employee from those petty slights or minor annoyances that often
take place at work and that all employees experience.” Id. Additionally, the “reasonable”
requirement reflects an objective standard. Id. at 68-69.

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Lastly, as to the third element, the plaintiff can establish causation “simply by showing
close enough timing between his protected activity and his adverse employment action.” Garcia v.
Pro. Cont. Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019). “However, ‘[t]he protected act and the
adverse employment action must be very close in time to establish causation by timing alone.’”
Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 578 (5th Cir. 2020), as revised (Aug. 14, 2020)
(quoting Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 948 (5th Cir.
2015)). The Fifth Circuit has recognized periods of six weeks to two-and-a-half months “are close
enough to show a causal connection.” Id.
Noakes argues that following the filing of her May 2021 EEO complaint, TSA unlawfully
retaliated against her by denying her a promotion to TSM in December 2021, auditing her hours
in November 2021, denying her FMLA leave to which she was entitled in February 2022, and
constructively terminating her in October 2022.6 (Rec. Doc. 14 at p. 20). While Noakes’ filing of
an EEO complaint in May 2021 is a protected activity under the first element of an unlawful
retaliation claim, see Carter v. Target Corp., 541 F. App’x 413, 418 (5th Cir. 2013) (unpublished)
(“Generally, a plaintiff who files a complaint with the EEOC engages in a protected activity.”)
(citation omitted), Noakes does not plead sufficient facts to support a finding that an adverse
employment action occurred related to her FMLA leave (second element) or that a causal link
existed between the protected activity and the adverse action (third element).
First, Noakes does not plead sufficient facts to support her claims of adverse employment
action pursuant to the TSA’s actions related to her FMLA leave. Specifically, the auditing of
Noakes’ FMLA hours was not an adverse employment action here. The alleged “auditing” that
occurred here involved monitoring and communicating that the liberal allowance of leave time
Just as in her hostile work environment claim, Noakes asserts additional alleged instances of retaliation
previously dismissed by the District Court that will not be readdressed here.
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granted to Noakes had expired. Such an action serves the legitimate business needs of the
organization and does not fall within the definition of an adverse employment action. Aldrich v.
Burwell, 197 F. Supp. 3d 124, 133 (D.D.C. 2016) (considering many federal district and circuit
court decisions to conclude that “an employer’s ‘[m]onitoring [of] an employee’s . . . time and
attendance,” . . . ‘is a basic employment practice and as such could only be
an adverse employment action if [plaintiff] previously had immunity from general employment
policies.’”) (quoting Simms v. Navy Fed. Credit Union, No. CV 02-0900-A, 2002 WL 32971969,
at *5 (E.D. Va. Aug. 27, 2002)).
Similarly, the alleged restricting of Noakes’ FMLA hours was not an adverse employment
action here. Noakes regularly refers to her FMLA as having been restricted. And while the record
is unclear as to how much FMLA leave was used or left by late February 2022,7 it does not
matter. Using a combination of sick leave, FMLA, LWOP, and AWOL, Noakes was out of work
for many months beyond her twelve-week FMLA entitlement, including six months before her
FMLA period of November 22, 2021, through Pay Period 2022-4 (Feb. 16, 2022).8 Plus, she
remained an inactive employee for an additional seven and a half months, from March to October
11, 2022, before she resigned, having never returned to work. Thus, TSA did not deprive Noakes
of any leave time to which she was entitled. To the contrary, she was provided with months of
leave to which she was not entitled. The only reason her leave time ceased was because she quit

Noakes erroneously states she only used 80 of her 480 FMLA hours. That was true at the time the letter
was written on December 22, 2021. “Thus far, as of Pay Period (PP) 25/2021, you have used 80 of your
480 hours.” (Rec. Doc. 13-4 at p. 1). In the Department’s Final Agency Decision, however, it notes that a
Human Resources Specialist stated that Noakes used 305 of her FMLA hours, not 80. (Rec. Doc. 13-3 at p.
8).
8
It is unclear whether this pay period begins or ends on February 16, 2022. Plaintiff’s complaint suggests
it ended on February 24, 2022. (Rec. Doc. 1 at ¶ 85). Either date is beyond the twelve weeks provided by
the FMLA, which would have expired on February 14, 2022.
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to reinstate her health benefits.9 (Rec. Doc. 1 at ¶ 88). Accordingly, while she may well have
preferred additional leave time with ongoing health coverage, denying her further FMLA did not
constitute a legally actionable adverse employment action.
Second, even assuming that the facts alleged also meet the second element, which requires
a showing of an adverse employment action, Noakes fails to plead facts sufficient to establish the
third element requiring a causal connection between the adverse activity and the protected
activity—even under the minimal pleading burden at the motion to dismiss stage. Noakes’
Complaint is completely devoid of facts, outside of conclusory statements, alleging a causal link
between her EEO complaint and any of the alleged instances of retaliation. Thus, in her opposition
Noakes relies solely on the temporal relationship between the alleged instances of retaliation and
her protected activity to establish a causal link. (Rec. Doc. 14 at pp. 19–20). But the facts
supporting the timing of the protected activity and the alleged adverse consequences do not
establish the requisite causal connection.
As noted above, to establish a causal link by timing alone, the adverse employment action
must be “very close in time,” and six weeks to two-and-a-half months has been recognized as close
enough. Brown, 969 F.3d at 578. While Noakes argues that some of the alleged adverse actions
occurred “within weeks” of the dismissal of Noakes’ EEO complaint, the dismissal of the claim is
not the protected action for purposes of establishing temporal proximity here—it is the filing of
the complaint. See Baldwin v. Holder, No. 09-842, 2011 WL 2078614, at *8 (S.D. Tex. May 26,
2011) (“The Fifth Circuit has looked to the date an EEO complaint was filed to calculate temporal
proximity.”) (collecting cases). With that in mind, the protected activity, filing her first EEO
complaint, occurred in May of 2021. Each of the alleged instances of retaliation occurred more
By quitting, Noakes became eligible for Temporary Continuation of Coverage (TCC). The private sector
refers to this as COBRA. (Rec. Doc. 13-5 at p. 2).
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than six months after Noakes filed her first EEO complaint. This timing far exceeds what the Fifth
Circuit has recognized as “very close in time” and is thus unquestionably insufficient to establish
a causal link. See Richards, 405 F. App’x at 831 n.12 (granting motion to dismiss and noting that
plaintiff “could not base her retaliation claim on her EEOC filing because that charge was filed
over seven months after she was discharged.”). Accordingly, Noakes failed to plead sufficient
facts to establish a retaliation claim, warranting dismissal.
4. Noakes’ Complaint Fails to State a Cognizable Title VII Disparate Treatment Discrimination
Claim (Count III)
Title VII provides that
It shall be an unlawful employment practice for an employer—
... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or
national origin;
42 U.S.C. § 2000e-2(a)(1). To survive a motion to dismiss a disparate treatment claim, the plaintiff
must plead facts that tend to show that the defendant took an adverse employment action against
the plaintiff because of her protected status, raising her right to relief above the speculative level.
Raj, 714 F.3d at 331 (quoting Kanida v. Gulf Coast Med. Personnel LP, 363 F.3d 568, 576 (5th
Cir. 2004) (“[T]he ‘ultimate question’ in a Title VII disparate treatment claim [is] ‘whether a
defendant took the adverse employment action against a plaintiff because of her protected
status.’”)). While a plaintiff is not required to make a showing of each prong of the prima facie test
for disparate treatment, when the plaintiff relies on circumstantial evidence of discrimination,10
the court may reference the elements required for a plaintiff to make a prima facie case. Chhim,

For the purposes of Title VII, “direct evidence includes any statement or written document showing a
discriminatory motive on its face,” and which, “if believed, proves the fact without inference or
presumption.” Herster v. Bd. of Supervisors of La. State Univ., 887 F.3d 177, 185 (5th Cir. 2018) (citations
omitted). Noakes’ complaint does not allege direct evidence, only circumstantial evidence.
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836 F.3d at 470; see also Davis v. Tex. Health & Human Servs. Comm’n, 761 F. App’x 451, 454
(5th Cir. 2019) (noting that although plaintiff need not submit evidence to establish a prima facie
case for disparate treatment, the plaintiff needs to “at least include facts giving rise to a reasonable
inference of plausibility that (1) she belongs to a protected class; (2) she applied for and was
qualified for a position for which applicants were being sought; (3) she was rejected; and (4) a
person outside of her protected class was hired for the position.”). Thus, whether the defendant
treated a similarly situated employee outside of her protected class more favorably is relevant to a
court’s analysis in evaluating whether a plaintiff has stated a claim for disparate treatment. See
Chhim, 836 F.3d at 471 (“Chhim pleads no facts that suggest the applicant hired by the University
was less qualified than Chhim or was similarly situated.”); Raj, 714 F.3d at 331 (“Raj’s complaint
and speculation did not allege any facts, direct or circumstantial, that would suggest . . . that LSU
treated similarly situated employees of other races or national origin more favorably.”).
Here, Noakes alleges that “TSA exhibited anti-white bias” against her by (1) auditing and
restricting her FMLA hours, (2) denying her multiple promotions and giving at least one position
to a non-white employee, and (3) constructively terminating her by withholding her health
insurance unless she resigned.11 (Rec. Doc. 1 at ¶ 126). As evidence of anti-white bias, Noakes
blanketly asserts that “TSA did not subject any non-white employee to the same treatment to which
it subjected Ms. Noakes,” that “there is no legitimate nondiscriminatory reason for TSA’s
behavior,” and that she heard from multiple TSA employees that TSA “predetermined to choose a
non-white employee” for a promotion. (Id. at ¶ 79, 130-131).
But Noakes does not plead any facts to suggest that she was treated less favorably than
other similarly situated employees. For example, outside of her speculation and subjective belief,

11

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Noakes provides no facts that indicate how, and if, non-white employees actually abused the
FMLA system such that the Court could find that other similarly situated individuals were treated
more favorably than her with regard to FMLA leave. Indeed, Noakes does not suggest that TSA
failed to audit any employee with a similar history of leave; instead, Noakes merely points out that
at least one other employee referred to herself as an “FMLA Queen.” (Id. at ¶ 83). But this fact
does not show how other non-white employees’ FMLA leave history compares with Ms. Noakes’
or that Ms. Noakes was treated less favorably than other similarly situated employees with respect
to her leave. Similarly, while Noakes notes that a non-white employee was given a promotion when
Noakes was not, she alleges no facts suggesting that the non-white employee who was ultimately
hired was similarly situated to her or less qualified than her. Noakes also fails to address the race
of the other two individuals who were allegedly promoted instead of her, indicating that race was
likely not a factor in the hiring decision of those individuals. The mere fact that Noakes believes
she was “objectively qualified” for the position does not, in itself, give rise to a claim for disparate
treatment.
Additionally, for the reasons already discussed related to Noakes’ retaliation claim, neither
the auditing of Noakes’ FMLA hours nor the restriction of those hours, at least in the context of
this case, is an adverse employment action. And even if an adverse employment action were to
exist, the Court cannot reasonably infer from the facts plead that any of TSA’s allegedly
discriminatory actions were because of Noakes’ race—a requirement for a disparate treatment
claim. Raj, 714 F.3d at 331. Indeed, Noakes’ own description of events suggests that race was not
the issue here. Noakes therefore fails to state a cognizable Title VII disparate treatment
discrimination claim.

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5. Noakes Failed to Exhaust Her Administrative Remedies and State a Cognizable Title VII
Constructive Discharge Claim
Noakes’ Complaint alleges that she was constructively terminated when she was forced to
resign to retain health insurance. (Rec. Doc. 1 at ¶ 89). Noakes argues that TSA’s harassment gave
her no choice but to resign. The alleged harassment includes (1) denying her a promotion that was
instead awarded to a non-white person, (2) auditing her hours, (3) denying her further FMLA leave,
and (4) stating that she could choose resignation to retain health insurance. (Id. at pp. 13-15).
Mayorkas, in the instant motion to dismiss, argues that Noakes’ constructive discharge claim has
not been administratively exhausted, as it is a separate employment event for which Noakes was
required to file a supplemental claim, and nothing in her EEO complaint put the Agency on notice
of a possible constructive discharge claim. In the alternative, Mayorkas states that her claim fails
because she resigned under reasonable circumstances from which she benefited by retaining her
health insurance. (Rec. Doc. 13-1 at pp. 13-14). In her opposition, Noakes asserts that her
constructive discharge claim is administratively exhausted, because constructive discharge
resulting from Defendant’s conduct is the type of event reasonably expected to grow out of the
initial charges in her EEO complaint, such as TSA denying her FMLA leave. In the alternative,
Noakes’ opposition argues that because she included that TSA terminated her health insurance in
her preliminary case information, a pre-decisional document that EEOC requested, the EEOC was
on notice of her constructive discharge claim. Further, Noakes argues that, on the merits, she
sufficiently alleged that Defendant’s conduct resulted in her constructive discharge by pleading
harassing conduct that would have caused any reasonable person to feel compelled to resign (Rec.
Doc. 14 at pp. 13-14, 24).
As an initial matter, the Court must determine whether Noakes’ constructive discharge
claim

has

been

administratively

exhausted.
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must exhaust administrative remedies before pursuing claims in federal court. Exhaustion occurs
when the plaintiff files a timely charge with the EEOC and receives a statutory notice of right to
sue.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002). “While a court should
construe an EEO claim broadly and look ‘slightly beyond its four corners, to its substance rather
than its label,’ a claim has only been exhausted if it “could reasonably be expected to grow out of
the charge of discrimination’ such that the Agency would be on notice of and be able to investigate
the claim.” Frank v. United States Dep’t of Agric., No. CV 18-923, 2018 WL 4052197, at *5 (E.D.
La. Aug. 24, 2018) (citing Pacheco v. Mineta, 448 F.3d 783 (5th Cir. 2006)). “The proper question
is whether the charge has stated sufficient facts to trigger an EEOC investigation and to put an
employer on notice of the existence and nature of the charges against him.” Simmons-Myers v.
Caesars Ent. Corp., 515 F. App’x 269, 272–73 (5th Cir. 2013). Excusing a plaintiff from the
exhaustion requirement would “circumvent the statutory scheme, since Title VII clearly
contemplates that no issue will be the subject of a civil action until the EEOC has first had the
opportunity to attempt to obtain voluntary compliance.” Sanchez v. Standard Brands, Inc., 431
F.2d 455, 467 (5th Cir. 1970).
Here, Noakes’ EEO complaint does not include a constructive discharge claim and makes
no mention of TSA’s offer to retain health insurance if she resigned.12 (Rec. Doc. 14-1). Noakes
opted to have her EEO complaint adjudicated by a Department Final Agency Decision wherein
her loss of health insurance, offer to resign, eventual resignation, nor any mention of a constructive
discharge claim were ever discussed. (Rec. Doc. 13-3). The absence of a constructive discharge
analysis and related facts suggest that, despite Noakes’ mention of her loss of health insurance in

Noakes was eligible for Temporary Continuation of Coverage (the “Private sector refers to this as
COBRA”) if she separated from TSA. (Rec. Doc. 13-5 at 2).
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a pre-decisional document, the EEOC was not on notice of her claim. Furthermore, there is no
reason to believe the facts of her EEO complaint, including denial of further FMLA leave, were
sufficient to put TSA on notice of her constructive discharge claim. It is not reasonable to infer that
TSA’s termination of FMLA leave on the pre-determined end date of the allotted FMLA period
would result in Noakes’ resignation and a constructive termination claim. Indeed, she stayed on in
an AWOL status for an additional seven months before quitting. Accordingly, Noakes’ constructive
discharge claim could not have reasonably been expected to grow out of her charge such that the
Agency would be on notice. Thus, Noakes’ constructive discharge claim was not administratively
exhausted, and is not properly before this Court.
Regardless, Noakes’ constructive discharge claim fails on the merits. To establish a claim
for constructive discharge, the plaintiff must show that “working conditions would have been so
difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled
to resign.” Jurgens v. E.E.O.C., 903 F.2d 386, 390 (5th Cir. 1990) (quoting Bourque v. Powell
Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir. 1980)). To determine whether a reasonable employee
would feel compelled to resign, courts consider:
(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4)
reassignment to menial or degrading work; (5) reassignment to work under a
younger supervisor; (6) badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or (7) offers of early retirement
[or continued employment on terms less favorable than the employee’s former
status].
Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001). “Constructive discharge requires
a greater degree of harassment than that required by a hostile environment claim.” Id. The Fifth
Circuit has repeatedly held that where a plaintiff fails to establish a hostile work environment
claim, his or her claim for constructive discharge necessarily fails as well. Christian v. Lowe’s
Companies, Inc., No. CV 23-1241, 2024 WL 3639518, at *12 (E.D. La. Aug. 2, 2024).
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“Discrimination alone, without aggravating factors, is insufficient for a claim of constructive
discharge, as is a discriminatory failure to promote.” Id.
Considering the factors listed above, a reasonable person would not feel compelled to
resign based on TSA’s actions in the instant case. Plustache v. City of New Orleans, No. CV 184844, 2021 WL 4948182, at *7 (E.D. La. Oct. 25, 2021) (finding that plaintiff’s allegations of
harassment, including three complaints that resulted in no discipline, two instances of plaintiff
being denied access to records he requested, and his participation in a Civil Service Commission
hearing, did not amount to harassment so extreme that an objective, reasonable employee would
have felt compelled to resign). Almost all factors are inapplicable here and at least some of TSA’s
actions can hardly be described as harassment, as they were based on “the needs of the
organization,” Noakes’ “continuing unscheduled absences,” and the “undue burden on the
operations and . . . fellow coworkers.” (Rec. Doc. 13-4). Notably, Noakes’ hostile work
environment claim failed, suggesting the more stringent constructive discharge standard, as a
matter of law, is not satisfied. Christian, 2024 WL 3639518, at *12 (“Because Mr. Christian’s
hostile work environment claim fails, he is not able to establish a higher degree of harassment that
is required to establish a constructive discharge claim.”); Martin v. Am. Midstream Partners, LP,
386 F. Supp. 3d 733 (E.D. La. 2019) (finding that because plaintiff did not sufficiently state a
hostile work environment claim, their constructive discharge claim fails as a matter of law).
Accordingly, Noakes has failed to state a claim for constructive discharge, warranting dismissal.

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Conclusion
For the foregoing reasons,
IT IS ORDERED that Defendant’s Motion to Dismiss (Rec. Doc. 13) is hereby
GRANTED.
New Orleans, Louisiana, this 11th day of March, 2025.

Janis van Meerveld
United States Magistrate Judge

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