Linehan v. University of Texas at Tyler

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 36 Report and Recommendations, and granting-in-part and denying-in-part 8 Partial Motion to Dismiss filed by University of Texas at Tyler, denying 29 Motion to Dismiss filed by University of Texas at Tyler and granting 31 Motion for Leave to Amend. All objections are overruled. Any amended complaint shall be filed within 14 days of this Order. Signed by Judge Robert W. Schroeder, III on 3/7/17. (mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
MARY LINEHAN
v.
UNIVERSITY OF TEXAS AT TYLER

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Case No: 6:16-CV-00066-RWS-JDL

ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The above civil action was referred to United States Magistrate Judge John D. Love
pursuant 28 U.S.C. § 636. On January 19, 2017, the Magistrate Judge filed his Report and
Recommendation (the “Report”) (Docket No. 36), which contains his findings, conclusions, and
recommendations regarding Defendant University of Texas at Tyler’s (“UTT”) Motions to
Dismiss, and Plaintiff’s Motion for Leave to Amend. The Report recommended that Defendant’s
Partial Motion to Dismiss (Docket No. 8) be granted-in-part and denied-in-part, that Defendant’s
Motion to Dismiss Unexhausted Claims be denied (Docket No. 29), and that Plaintiff’s Motion for
Leave to Amend (Docket No. 31) be granted. The Report also recommended that Plaintiff’s
disability discrimination claims be dismissed without prejudice.
On February 3, 2017, UTT filed objections to the Report on three grounds: (1) that the
Report used the incorrect standard of review; (2) that claims arising from actions occurring outside
of the 300-day exhaustion deadline are time-barred; and (3) that Ms. Linehan’s Title VII claims
should be dismissed because she did not suffer an adverse employment action. See Docket No.
39. Ms. Linehan did not file a response to UTT’s objections.

Having made reviewed the objected-to portions of the Magistrate Judge’s Report de novo,
the Court agrees with that the findings and conclusions of the Magistrate Judge. For the reasons
outlined below, UTT’s objections are OVERRULED.
1. Standard of Review
The Magistrate Judge’s Report cites to the Twombly proposition that “[a] claim will survive
an attack under Rule 12(b)(6) if it ‘may be supported by showing any set of facts consistent with
the allegations in the complaint.’” Docket No. 36 at 10 (citing to Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 562 (2007)). UTT argues that the Report applied an incorrect standard of review,
and “dramatically misconstrue[d] Twombly” because Twombly abrogated the “any set of facts”
standard. Docket No. 39 at 4. UTT’s understanding of Twombly is mistaken.
A plain reading of Twombly indicates that the Supreme Court abrogated the “no set of
facts” standard which had evolved from the Court’s previous decision in Conley v. Gibson.
Twombly, 550 U.S. at 561 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (emphasis added). In
Conley, the Court spoke of “the accepted rule that a complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46. Applying a literal
interpretation of this statement to Twombly, the Second Circuit found “the prospect of unearthing
direct evidence of conspiracy sufficient to preclude dismissal, even though the complaint [did] not
set forth a single fact in a context that suggest[ed] an agreement.” Twombly, 550 U.S.at 561.
The Supreme Court reversed the Second Circuit, retiring the “no set of facts” language. Id.
The Court criticized “such a focused and literal reading of Conley’s ‘no set of facts’” standard that
had developed over the years, in which “a wholly conclusory statement of claim would survive a
motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later

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establish some ‘set of [undisclosed] facts’ to support recovery.” Id. It is this standard, and not the
“any set of facts” standard, that the Supreme Court abrogated and clarified was “not the minimum
standard of adequate pleading to govern a complaint’s survival.” Id. at 563. The Court went on to
clarify that the “no set of facts” language “is best forgotten as an incomplete, negative gloss on an
accepted pleading standard: once a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in the complaint.” Id. (emphasis added).
UTT’s contention that “the Twombly court explained that the any or no set of facts language
from Conley was ‘not the minimum standard of adequate pleading’” is a misstatement of the law
and a haphazard conflation of the very distinction the Supreme Court intended to make between
these two standards.
To be sure, a number of courts, including the Fifth Circuit, have accepted and continued to
invoke the “any set of facts” standards in the context of a Rule 12(b)(6) motion after Twombly.1
UTT cites to no binding case law holding otherwise. See Docket No. 39 at 4.
UTT also argues that because the Report applied an incorrect standard of review, the Court
should reconsider UTT’s motions under the plausibility standard. Docket No. 39 at 3-4, 6.
The plausibility requirement of Twombly is meant to ensure that a claim contains more than
“the mere possibility of loss” or “allegation of parallel conduct,” lest a plaintiff with “a largely
groundless claim” be allowed to take up the time of a number of other people. Twombly, 550 U.S.

1

See Jaso v. The Coca Cola Co., 435 Fed. Appx. 346, 352 (5th Cir. 2011); Turner v. AmericaHomeKey Inc.,
514 Fed. Appx. 513, 516 (5th Cir. 2013) (“A claim must be dismissed ‘if as a matter of law it is clear that no relief
could be granted under any set of facts that could be proved consistent with the allegations.”); Huerta v. Shein, 498
Fed. Appx. 422, 424 (5th Cir. 2012); Bullard v. Texas Dept. of Aging and Disability Servs., 19 F. Supp. 3d 699 (E.D.
Tex. 2013); Bracken v. Wells Fargo Bank, N.A., 13 F. Supp. 3d 673 (E.D. Tex. 2014); American S. Ins. Co. v. Buckley,
748 F. Supp. 2d 610 (E.D. Tex. 2010); Noble v. Lear Siegler Servs., Inc., No: 5:11CV181, 2012 WL 4815384, at *1
(E.D. Tex. Sep. 18, 2012), adopted Oct. 10, 2012; Phillips v. Cnty. of Allegheny, 515 F.3d 224 (3rd Cir. 2008);
Giarratano v. Johnson, 521 F.3d 298 (4th Cir. 2008); Wells v. Craig & Landreth Cars, Inc., 474 Fed. Appx. 445 (6th
Cir. 2012); Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1147 (7th Cir. 2010); Enterprise Mgmt. Ltd., Inc. v.
Warrick, 717 F.3d 1112 (10th Cir. 2013); Burgess v. Religious Tech. Ctr., Inc., 600 Fed. Appx. 657 (11th Cir. 2015).

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557 (internal quotation omitted). “The need at the pleading stage for allegations plausibly
suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule
8(a)(2) that the ‘plain statement’ possess enough heft to ‘sho[w] that the pleader is entitled to
relief.’” Twombly, 550 U.S. 557. “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).
UTT argues that a number of Ms. Linehan’s claims “fail to cross the line from conceivable
to plausible because they are either time-barred or fail to allege an adverse employment action.”
Docket No. 39 at 4-5. However, neither of these issues relates to the plausibility of Ms. Linehan’s
claims, or whether her factual allegations suggest more than consistency or a mere possibility of
discrimination. Moreover, the Magistrate Judge enumerated the specific factual allegations he
considered in determining that Ms. Linehan has stated a valid, plausible complaint sufficient to
survive a motion to dismiss. Docket No. 36 at 15-16. The Court agrees with the Report’s analysis.
The Court finds that the Magistrate Judge properly considered the Rule 8(a)(2) requirement
for stating a valid complaint, and applied the correct Rule 12(b)(6) standard of review in analyzing
UTT’s motion. Docket No. 36 at 9-10, 14-15.
UTT’s first objection is therefore OVERRULED.
2. Time-barred Claims
UTT next objects that any discrete claims alleging adverse employment actions that
occurred outside of the 300-day exhaustion deadline are time-barred. Docket No. 39 at 5. UTT
seeks clarification as to which of Ms. Linehan’s sex-discrimination claims will be going forward.
Id.

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In her response to UTT’s Motion to Dismiss, Ms. Linehan “concedes that several of the
factual events occurred outside of the 300 day limitations period.” Docket No. 12 at ¶ 11. She
argues, however, that such acts are not fatal to her complaint “insofar as [those] events portray a
history of disparate treatment.” Id. The Court agrees that Ms. Linehan is not barred from using
the prior acts “as background evidence” to support her timely paid administrative leave claim.
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
Ms. Linehan has not alleged any discrete Title VII claims based on acts preceding the 300day limitations period. Even so, the Court clarifies that any discrete claims based on acts occurring
outside of the 300-day period are time-barred.
However, to the extent Ms. Linehan also seeks to pursue to a Title VII sex-discrimination
claim based on a hostile work environment, Ms. Linehan is permitted to allege acts preceding the
300-day period to support her claim. See National R.R. Passenger Corp. 536 U.S. 116-117 (2002)
(“It does not matter, for purposes of the [Title VII] statute, that some of the component acts of the
hostile work environment fall outside the statutory time period. Provided that an act contributing
to the claim occurs within the filing period, the entire time period of the hostile environment may
be considered by a court for the purposes of determining liability.”). This is because hostile work
environment claims are different in kind from discrete acts. Id. at 115. “Their very nature involves
repeated conduct,” such that the alleged unlawful employment practice “cannot be said to occur
on any particular day.” Id. Instead, a hostile work environment practice “occurs over a series of
days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be
actionable on its own.” Id.
UTT argues that Ms. Linehan abandoned any hostile work-environment claims in her
response to UTT’s motion. Docket No. 39 at 5 n.6. Just the opposite, Ms. Linehan stated in her

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response that her claims resulted in her “having to work in a hostile environment.” Docket No. 12
at ¶ 4; see also id. at ¶ 15 (“Plaintiff has shown through her complaint that she was the constant
victim of separate and disparate treatment that did cause her to feel that she was in a hostile work
environment.”).
The Magistrate Judge recommended granting Ms. Linehan leave to file an amended
complaint to allow her to state her claims and factual allegations with greater specificity. Docket
No. 36 at 10. The Magistrate Judge’s recommendation is well-taken, and a dismissal of Ms.
Linehan’s hostile work environment claim before she has been afforded an opportunity to amend
her complaint would be untimely.
Accordingly, UTT’s second objection is OVERRULED, with the clarification that any
discrete claims based on acts occurring outside of the 300-day limitation period are time-barred.
3. Adverse Employment Action
Lastly, UTT objects that the Magistrate Judge should have dismissed those of Ms.
Linehan’s claims that are based on paid administrative leave.
UTT first argues that the Report’s reliance “on the wrong standard of review is most
problematic” because the Report relied “on Conley to conclude that Linehan is not required to
allege that she suffered an adverse employment action to state a discrete Title VII claim.” Docket
No. 39 at 6. As explained above, the Magistrate Judge applied the correct Rule 12(b)(6) standard
of review.
Further, the Report relied on Swierkiewicz v. Sorema, N.A., not Conley, in analyzing the
pleading requirements for an employment discrimination complaint. Docket No. 36 at 14.
Swierkiewicz has been readily cited by the Fifth Circuit and district courts within Texas for its

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proposition that an employment discrimination complaint need not contain all elements of a prima
facie case to survive a Rule 12(b)(6) motion.2
Even so, as detailed in the Report, Ms. Linehan has pled a number of facts to support her
allegation that she suffered an adverse employment action. See Docket No. 36 at 16-17. In
addition to being placed on paid administrative leave, Ms. Linehan alleges she was denied access
to the university’s facilities, was unable to participate in any summer course programs, had all
research funding cut off, was prohibited from seeking Post-Tenure Review, was unable to research
and or publish work for two years, and was not allowed to tell prospective employers that she had
worked at UTT since 2009. Id. The Court agrees with the Report’s recommendation that,
accepting these facts as true and viewing them in the light most favorable to the non-moving party,
Ms. Linehan has alleged adverse employment action to survive a Rule 12(b)(6) motion. Docket
No. 36 at 17.
Second, UTT argues that Ms. Linehan has failed to state a claim because paid
administrative leave is not considered an adverse employment action for a sex-discrimination
claim. Docket. No. 39 at 5. As the Report correctly noted, an adverse employment action consists
of ultimate employment decisions such as hiring, firing, demoting, promoting, granting leave,

2

See Raj v. Louisiana State Univ., 714 F.3d 322, 331 (5th Cir. 2013) (“a plaintiff need not make out a prima
facie case of discrimination in order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim”); Mitchell
v. Crescent River Port Pilots Ass’n, 265 Fed. Appx. 363, 370 (5th Cir. 2008) (“The Supreme Court has ruled that at
the Rule 12(b)(6) stage, a plaintiff need not plead all of the elements of a prima facie case of discrimination
under McDonnell Douglas in his complaint but instead must simply present a short and plain statement of the claim
showing that [the plaintiff] is entitled to relief. Therefore, a dismissal for failure to state a claim under Rule
12(b)(6) cannot be based on a failure to plead the McDonnell Douglas elements.”) (internal citations and quotations
omitted); Walker v. Beaumont Independent School District, Civil Action No. 1:15-CV-379, 2016 WL 6666833, at *10
(E.D. Tex. Aug. 18, 2016), report and recommendation adopted as modified on Sep. 14, 2016; Walker v. Trinity Oil
and Gas Co., Civil Action No. 7:16-cv-00098-O-BP, 2016 WL 7745174, at *1 (N.D. Tex. Dec. 12, 2016), report and
recommendation adopted Jan. 13, 2017; Brown v. Texas Christian Uni. Board of Trustees, Civil Action No. 4:15-CV791-Y, 2016 WL 4368303, at *5 n.5 (N.D. Tex. Aug. 16, 2016) (“And although a plaintiff is not required to plead a
prima-facie case of discrimination, see Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510-11 (2002), his complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face in order to
survive a motion to dismiss.”) (internal citations and quotations omitted).

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compensating, transfer, or reassignment. Docket No. 36 at 17 (citing Thompson v. City of Waco,
Tex., 764 F.3d 500, 505 (5th Cir. 2015). Whether Ms. Linehan’s paid administrative leave status
and the terms and effects of that leave constituted an adverse employment action is an issue more
appropriately analyzed at the summary judgment stage when the Court can consider the evidence
in the record and factual context surrounding the paid leave.
The Court finds that the Magistrate Judge correctly denied UTT’s motion to dismiss Ms.
.
Linehan’s discrete paid administrative leave claim, as she has pleaded enough facts to allege an
adverse employment action. Accordingly, UTT’s third objection is OVERRULED.
In conclusion, having considered UTT’s objections de novo, the Court ADOPTS the
Report and Recommendation of the United States Magistrate Judge as the findings and conclusions
of this Court. All objections are OVERRULED.
It is further ORDERED that Plaintiff shall file any amended complaint within fourteen
days from the date of this Order.
SIGNED this 7th day of March, 2017.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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