Sanders v. City of Fort Worth

Filing 14

Memorandum Opinion and Order granting 11 Motion to Dismiss filed by City of Fort Worth. The court ORDERS that defendant's motion to dismiss be, and is hereby, granted, and that plaintiff's claims be, and are hereby, dismissed. (see order for further specifics) (Ordered by Judge John McBryde on 3/23/2017) (mpw)

U.S. D1ST'- 'rT COURT

NORTHERi';

IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MATTIE SANDERS,

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Plaintiff,

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§

vs.
CITY OF FORT WORTH,

TEXAS

T

MAR 2 3 2017
By

Deputy

NO. 4:16-CV-1153-A

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§
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Defendant.

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, City of
Fort Worth, to dismiss. The court, having considered the motion,
the response of plaintiff, Mattie Sanders, the reply, the record,
and applicable authorities, finds that the motion should be
granted.
I.

Plaintiff's Claims
Plaintiff originally filed her claims in the 48th Judicial
District Court of Tarrant County, Texas. Defendant filed a notice
of removal, bringing the action before this court, and the court
ordered the parties to replead. On February 3, 2017, plaintiff
filed her amended complaint.
Plaintiff alleges: She began her employment with defendant
in 2005. In October 2015, Sarah Odle 1 was appointed plaintiff's
supervisor. That month, plaintiff made her first complaint to

1

The name is alternatively spelled "Oldie" and "Odie," with the latter spelling used most often.

1

human resources that Odle berated her publicly. During November
and December, Odle repeated her public berating of plaintiff and
plaintiff complained to human resources. Plaintiff also notified
the director and several meetings followed. On November 23, 2015,
plaintiff was placed on a performance improvement plan. This was
the first request to improve her employment that plaintiff
received during her tenure with defendant. On March 17, 2016,
plaintiff received disciplinary action citing her performance. On
June 14, 2016, she was notified that she was under consideration
for termination due to performance. At some point, plaintiff was
terminated. 2
The only allegations contained in the amended complaint that
touch on the actions of Ms. Odle are as follows:
The Plaintiff reported the employer that: "several
times in November and December, 2015, Ms. Odle again
approached my desk and began to speak with me openly in
the ear-shot of other staff about personal/professional
issues even after she was asked in writing not to do
this because it made me feel very uncomfortable, it was
unprofessional, and violated my privacy expectations as
an employee. Nonetheless, she continued her hostility
and retaliatory conduct towards me."
The Plaintiff also reported: "There were several
occasions when Miss Odle made me feel very
uncomfortable about my hairstyle in braids as an
African-American she made racial comments from time to
time about my hair whenever I would wear a braids which
was a lot she came up and touched my hair on several

2

There is not a factual allegation that plaintiff was terminated. The termination is mentioned
under the causes of action section regarding retaliation.
2

occasions after I ask her not to touch my hair which
was very uncomfortable for me she made me feel very
uncomfortable in many many occasions. Even after I
explained to her that it was because of my culture she
continued to badger me and made me feel very
uncomfortable about my hair and make by making
continuing to making comments about my braids saying
that why do I wear braids even after I explain[ed] to
her why" .
Doc. 3 10 at 3-4,

~~

14-15.

(Grammatical errors in the original

are too numerous to point out or correct.) Notably, these are not
allegations of fact, but only that plaintiff made certain
reports.
Plaintiff asserts claims for hostile work environment,
retaliation, and violation of the Texas Labor Code.
II.
Grounds of the Motion
Defendant maintains that plaintiff has not alleged
sufficient facts to state a claim under Title VII or the Texas
Labor Code, which applies the same standard. And, punitive
damages may not be imposed against defendant.
III.
Applicable Pleading Requirements
Rule 8 (a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement

3

The "Doc.

" reference is to the number of the item on the docket in this action.
3

of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a) (2),

"in order to give the defendant fair

notice of what the claim is and the grounds upon which it rests,u
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
quotation marks and ellipsis omitted) .

(2007)

(internal

Although a complaint need

not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.

Twombly, 550 U.S. at 555 & n.3.

Thus, while a court

must accept all of the factual allegations in the complaint as
true, it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)

See Ashcroft v. Iqbal,

("While legal conclusions can provide

the framework of a complaint, they must be supported by factual
allegations.").
Moreover, to survive a motion to dismiss for failure to
state a claim, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.
U.S. at 678.

Iqbal, 556

To allege a plausible right to relief, the facts

pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient. Id. In other
words, where the facts pleaded do no more than permit the court
to infer the possibility of misconduct, the complaint has not

4

shown that the pleader is entitled to relief. Id. at 679.
"Determining whether a complaint states a plausible claim for
[is] a context-specific task that requires the

relief .

reviewing court to draw on its judicial experience and common
sense."

Id.
IV.
Analysis

A.

Discrimination
Defendant says that plaintiff has failed to allege facts

that would entitle her to relief under Title VII or the Texas
Labor Code. As defendant notes, there is no need to analyze the
state law claims separately as they are analyzed under the Title
VII framework. Khalfani v. Balfour Beatty Communities, L.L.C.,
595 F. App'x 363, 365 n.1

(5th Cir. 2014); Wallace v. Methodist

Hosp. Svs.i 271 F.3d 212, 219 n. 10 (5th Cir. 2001). Plaintiff
does not disagree. And, she acknowledges that to avoid dismissal,
she was required to plead more than "labels and conclusions" and
a "formulaic recitation of the elements of a cause of action."
Doc. 12 · at 5. 4
Plaintiff has not alleged direct evidence of discrimination.
To make out a prima facie case of discrimination, plaintiff must

4

In her summary of the argument, plaintiff says that the harassment complained of was based on
sex. Doc. 12 at 2. The court assumes that plaintiff intended to say "race."
5

show that

( 1) she is a member of a protected class;

qualified for her job;
employment action; and,

( 2) she was

(3) she was subjected to an adverse
(4) she was treated less favorably than,

similarly-situated individuals of another race, or replaced by a
member of another race. Okoye v. Houston Health Science Center,
245 F.3d 507, 512-13

(5th Cir. 2001). An adverse employment

action is an ultimate employment decision. Felton v. Polles, 315
F.3d 470, 486

(5th Cir. 2002). In this regard, the court would be

speculating as to any claim. The only adverse employment action
alleged is plaintiff's termination. 5 But, she does not allege any
facts to show that the termination was based on her race. For
example, she does not say whether the supervisor put any of
plaintiff's colleagues on a performance improvement plan or
whether anyone else was terminated or whether she was replaced by
someone of another race. In fact, plaintiff does not identify any
similarly situated persons. Nor does she identify the race of her
supervisor or the directors

(prior and current) she says she met

with.
Plaintiff likewise fails to allege direct evidence of
retaliation. To make out a prima facie case of retaliation,
plaintiff must show:

(1) she participated in an activity

5

Plaintiff makes the conclusory allegation that defendant discriminated "in connection with
compensation or the terms, conditions, or privileges of employment and adversely affected Plaintiffs
status as an employee," Doc. 10 at 6, ~ 38, but alleges no facts in support.
6

protected by Title VII;
action against her; and,

(2) defendant took an adverse employment
(3) a causal connection exists between

the protected activity and the materially adverse action. Aryain
v. Wal-Mart Stores Tex. L.P., 534 F.3d 473, 484

(5th Cir. 2008).

As defendant notes, engaging in protected activity means opposing
a practice made unlawful by Title VII or demonstrating a good
faith belief that Title VII was violated by the defendant. Wilson
v. Univ. of Tex. Health Ctr., 973 F.2d 1263, 1267 (5th Cir.
1992). Complaining about something that is not an unlawful
employment practice is not sufficient. Rose v. Upshur County, No.
6:11cv263, 2012 WL 2088663, at *3

(E.D. Tex. June 8, 2012) (no

retaliation claim where plaintiff complained about other
employees who had made comments of a sexual nature about his
wife). Here, plaintiff says she complained to human resources
"regarding the behavior alleging that the supervisor berated her
publicly.n Doc. 10 at 2, , , 8. 10. The public berating is
described in paragraph 14 of the amended complaint, which is that
her supervisor would speak with her in ear-shot of other staff
about personal/professional issues. But there is no reason to
believe that complaining about this berating would be a protected
activity.
Finally, plaintiff alleges that she was subjected to a
hostile work environment. To support such a claim, plaintiff must

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show:

(1)

she belongs to a protected group;

to unwelcome harassment;
based on race;

(4)

(3)

(2)

she was subjected

the harassment complained of was

the harassment complained of affected a term,

condition, or privilege of employment; and (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). To affect a term, condition, or privilege of

employment, the conduct must be so extreme and pervasive as to
amount to a change in terms or conditions of employment. Faragher
v. City of Boca Raton,

524 U.S.

775,

799

(1998). The court

considers the frequency of the discriminatory conduct, its
severity, whether it is physically threatening or humiliating, or
merely an offensive utterance, and whether it unreasonably
interferes with the employee's work performance. Ramsey, 286 F.3d
at 268.
Here, plaintiff simply recites in a conclusory manner the
elements of a hostile work environment claim. The only factual
allegations she makes are with regard to the "public berating"
and that her supervisor made her feel uncomfortable when she wore
braids. These are the only alleged instances of bad conduct.
Plaintiff clearly says that the berating "violated [her] privacy
expectations as an employee." Doc. 10 at 3, , 14. There is no
hint that the "personal/professional issues" discussed had

8

anything to do with race. See Askew v. Raytheon Co., No. 3:13-CV4220-G, 2014 WL 1567916, at *3-4

(N.D. Tex. Apr. 17,

2014) (dismissal appropriate where plaintiff failed to allege
connection between being berated and his race). As for her hair,
plaintiff says that she felt uncomfortable because her supervisor
touched her hair. Doc. 10 at 3,

~

15. She also felt uncomfortable

because the supervisor asked why she wore her hair the way she
did. Id. Touching someone's hair and commenting on how it is
styled may be offensive, but not necessarily based on race. But
even if the court were to assume that the supervisor's conduct
was based on plaintiff's race, the facts alleged here do not
amount to the kind of extremely serious conduct that gives rise
to a hostile environment case. See Faragher, 524 U.S. at 788;
Hockman v. Westward Commnities, L.L.C., 407 F.3d 317, 326 (5th
Cir. 2004) (citing examples of what is sufficient to allege a
claim); Gonzalez v. Geren, No. 3:07-CV-242-KC, 2009 WL 522935, at
*12-13

(W.D. Tex. Jan. 12, 2009) (citing examples of behavior

insufficient to state a claim). Accordingly, dismissal is
appropriate. Stone v. La. Dept. of Revenue, 590 F. App'x 332,
54 0 - 41 (5th Ci r . 2 0 14 )
B.

Punitive Damages
Defendant points out that plaintiff cannot, in any event,

recover punitive damages from it. See City of Newport v Fact

9

Concerts, Inc., 453 U.S. 247, 271 (1981). Plaintiff does not
respond to this ground, apparently agreeing with defendant's
analysis.

v.
Order
The court ORDERS that defendant's motion to dismiss be, and
is hereby, granted, and that plaintiff's claims be, and are
hereby, dismissed.
SIGNED March 23, 2017.

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