Hayden v. City of Fort Worth
MEMORANDUM OPINION AND ORDER: The court ORDERS that defendant's 17 motion to dismiss be, and is hereby, granted in part and plaintiff's claims based on 42 U.S.C. §§ 1981 and 1983, for retaliation under Title VII as a result of filing his EEOC charge, for discrimination under the ADEA, and for retaliation under the ADEA as a result of the filing of his EEOC charge be, and are hereby, dismissed. (Ordered by Judge John McBryde on 9/11/2017) (bdb)
U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
CLERK, U.S. DISTRICT COURT
THE CITY OF FORT WORTH,
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, City of
Fort Worth, to dismiss plaintiff's first amended complaint. The
court, having considered the motion, the response of plaintiff,
Edwin Hayden, the record, and applicable authorities, finds that
the motion should be granted in part.
The operative pleading is plaintiff's first amended
complaint' filed July 28, 2017. Doc.' 16. In it, he alleges:
Plaintiff is a police officer employed by defendant. Doc. 16
, 6. In December 2015, he sought a position as a school
resource officer at Chisholm Trail High School. Id., , 12.
Plaintiff filed his original complaint on Jtme 2, 2017, naming as defendant "City of Fmi Wotih
and Fmi Wmih Police Depatiment" as a single entity. City of Fort Worth filed a motion to dismiss,
noting among other things that its police depatiment is not a legal entity subject to suit. The motion also
pointed out many of the same defects discussed in the motion now under consideration. Rather than
respond, plaintiff sought and was granted leave to amend.
"reference is to the number of the item on the docket in this action.
Lieutenant Elgin ("Elgin") told plaintiff that "they" were going
to place him at the school and that the school wanted him. Id.,
13. Shortly after that meeting, plaintiff's supervisor, Sergeant
Wisdom ("Wisdom"), told plaintiff he had already promised the
position to Officer Meyer a couple of months earlier. Id.,
Officer Myers is a younger, Caucasian male. Id. at 3,
Wisdom and Elgin promised plaintiff that he would be given the
position when it next became available. Id.,
17, 18. Officer
Myers left the position in February 2016 and plaintiff expressed
his interest by email and told Elgin he wanted the position.
19, 21-22. Defendant denied plaintiff the position and awarded
it to another Caucasian officer. Id.,
25; id. at 4,
at Chisholm Trail was a better position than the one
plaintiff held for a number of reasons. Id.,
complained several times on the basis of age and race
discrimination. Id. at 5,
42-45. Plaintiff was retaliated
against because of his complaints by being denied a better
position during the summer. Id., ~~ 47-51; id. at 6, ~~ 52-62. On
or about June 15, 2016, plaintiff filed a charge of
discrimination with the united States Equal Employment
Opportunity Commission ("EEOC"). Id. at 7,
64. On or around
2016, defendant mandated that plaintiff enter the
Employee Assistance Program ("EAP"), giving him conflicting
reasons for doing so. Id.,
Plaintiff asserts claims for race discrimination and
retaliation under Title VII of the Civil Rights Act of 1964, 42
2000e to 2000e-17
("Title VII"), and 42 U.S.C.
& 1983. He also asserts a claim for age discrimination and
retaliation under the Age Discrimination in Employment Act of
1967, 29 U.S.C.
Grounds of the Motion
Defendant maintains that plaintiff has failed to state any
plausible claims against it. In particular, defendant says that
plaintiff has failed to state a claim under section 1981 because
he has not alleged that he was subjected to discrimination or
retaliation based on an official policy or custom of defendant.
Second, plaintiff has failed to allege facts to support a
plausible claim under Title VII. And, third, plaintiff has failed
to allege facts to support a plausible claim under the ADEA.
Rule 8 (a) (2) Pleading Standards
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
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,"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted).
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
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
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.
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
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
reviewing court to draw on its judicial experience and common
As the Fifth Circuit has explained: "Where the complaint is
devoid of facts that would put the defendant on notice as to what
conduct supports the claims, the complaint fails to satisfy the
requirement of notice pleading." Anderson v. U.S. Dep't of
Housing & Urban Dev., 554 F.3d 525, 528 (5th Cir. 2008). In sum,
"a complaint must do more than name laws that may have been
violated by the defendant; it must also allege facts regarding
what conduct violated those laws. In other words, a complaint
must put the defendant on notice as to what conduct is being
called for defense in a court of law." Id. at 528-29.
Sections 1981 & 1983
Section 1983 of Title 42, United States Code, provides the
sole remedy for discrimination by persons acting under color of
state law, i.e., for violations of
246 F. 3d 458, 463
1981. Oden v. Oktibbeha
(5th Cir. 2001). The law is clearly
established that recovery against a municipality under
not be predicated on a theory of respondent superior.
New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978);
Evans v. City of Houston, 246 F.3d 344, 357 (5th Cir. 2001);
Williams v. Luna, 909 F.2d 121, 123
(5th Cir. 1990). Liability
may be imposed against a municipality only if the governmental
body itself subjects a person to a deprivation of rights or
causes a person to be subjected to such deprivation. Connick v.
Thompson, 563 U.S. 51, 60
(2011). Local governments are
responsible only for their own illegal acts. Id.
v. Cincinnati, 475 U.S. 469, 479
(1986)). Thus, plaintiffs who
seek to impose liability on local governments under
prove that action pursuant to official municipal policy caused
their injury. Monell, 436 U.S. at 691. Specifically, there must
be an affirmative link between the policy and the particular
violation alleged. City of Oklahoma City v. Tuttle, 471 U.S. 808,
(1985). Thus, to establish municipal liability requires proof
of three elements: a policymaker, an official policy, and a
violation of statutory or
constitutional rights whose moving
force is the policy or custom. Piotrowski v. City of Houston, 237
F.3d 567, 578
(5th Cir. 2001).
The Fifth Circuit has been explicit in its definition of an
•official policy• that can lead to liability on the part of a
governmental entity, giving the following explanation in an
opinion issued en bane in response to a motion for rehearing in
Bennett v. City of Slidell:
1. A policy statement, ordinance, regulation, or
decision that is officially adopted and promulgated by
the municipality's lawmaking officers or by an official
to whom the lawmakers have delegated policy-making
2. A persistent, widespread practice of city officials
or employees, which, although not authorized by
officially adopted and promulgated policy, is so common
and well settled as to constitute a custom that fairly
represents municipal policy. Actual or constructive
knowledge of such custom must be attributable to the
governing body of the municipality or to an official to
whom that body had delegated policy-making authority.
Actions of officers or employees of a municipality do
not render the municipality liable under § 1983 unless
they execute official policy as above defined.
735 F.2d 861, 862
(5th Cir. 1984)
The general rule is that allegations of isolated incidents
are insufficient to establish a custom or policy. Fraire v. City
957 F.2d 1268, 1278 (5th Cir. 1992); McConney v.
City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989); Languirand
v. Hayden, 717 F.2d 220, 227-28
(5th Cir. 1983). The "single
incident exception" is extremely narrow and gives rise to
municipal liability only if the municipal actor is a final
policy-maker (as distinguished from decision-maker). Bolton v.
City of Dallas, 541 F. 3d 545, 548-49 (5th Cir. 2008).
Here, plaintiff conclusorily recites in his amended
complaint that defendant's actions "were undertaken in accordance
with an official municipal policy or custom in violation of 42
1983." Doc. 16 at 8, '80. However, despite his
contention to the contrary, Doc. 18 at 3, plaintiff has not
pleaded any facts to support the existence of a municipal policy
or custom. Instead, he has only pleaded that:
26. Upon information and belief, Lt. Elgin and
Sgt. Wisdom's superiors, the ultimate decision-makers
with regard to transfers, approved Lt. Elgin's and Sgt.
27. As a matter of course, these types of
decisions are run up the chain of command.
Doc. 16 at 3, ' ' 26-27. He also pleads that he "personally spoke
to one of Lt. Elgin's and Sgt. Wisdom's superiors .
. about the
transfer matter." Id. at 4, '28.
As recited, supra, an official policy is one that is
officially adopted and promulgated by those with policy-making
authority. Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th
Cir. 2003). A custom is a "persistent, widespread practice of
city officials or employees, which, although not authorized by
officially adopted and promulgated policy, is so common and well
settled as to constitute a custom that fairly represents
municipal policy." Bennett, 735 F.2d at 862. Here, plaintiff has
not identified any policy or custom. See Spiller v. City of Tex.
City, 130 F.3d 162, 167 (5th Cir. 1997). Nor has he identified
any policy-maker as distinguished from a decision-maker. See
Bolton, 541 F.3d at 548-59. And, he has not pleaded facts to show
that any custom or policy was the moving force behind a violation
of his federally protected rights. See Bd. of Cty. Commn•rs v.
Brown, 520 U.S. 397, 404
(1997). Thus, plaintiff's claims based
on a municipal policy or custom fail and must be dismissed.
To make out a prima facie case of racial discrimination,
plaintiff must show that
(1) he is a member of a protected class;
(2) he was qualified for the position;
adverse employment action; and,
(3) he was subjected to an
(4) he was treated less favorably
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). Ultimate employment
decisions include hiring, firing, demoting, promoting, granting
leave, and compensating. Thompson v. City of Waco, 764 F.3d 500,
(5'h Cir. 2014). A transfer may constitute an ultimate
employment decision only if the transfer, or its denial, can be
objectively characterized as an effective promotion or demotion.
Id. A purely lateral transfer, even if subjectively preferable,
is not an adverse employment action. Munoz v. Seton Healthcare,
Inc., 557 F. App'x 314, 320 (5th Cir. 2014). And, an employer's
action does not rise to the level of adverse if it fails to have
more than a tangential effect on a possible future ultimate
employment decision. Mota v. Univ. of Tex. Houston Health Sci.
Ctr., 261 F.3d 512, 519 (5th Cir. 2001). Nevertheless, whether a
position is objectively better or worse depends on factors such
as whether the work is more interesting, whether it is viewed as
more prestigious, whether it provides more room for advancement,
whether the position is generally preferred over another one, and
whether it provides greater responsibility or better job duties.
Alvarado v. Texas Rangers, 492 F. 3d 605, 613-14
(5u Cir. 2007).
To state a claim for retaliation under Title VII, plaintiff
must allege that he participated in an activity protected by
Title VII, his employer took an adverse employment action against
him, and a causal connection exists between the protected
activity and the adverse employment action. McCoy v. City of
Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). Adverse action is
that which produces injury or harm. Lopez v. Kempthorne,
supp. 2d 827, 862
(S.D. Tex. 2010). "[P)etty slights, minor
annoyances, and simple lack of good manners are not actionable
retaliatory conduct." Id. at 863. And, for there to be a causal
connection, the employer must know about the employee's protected
activity. Manning v. Chevron Chern. Co., LLC, 332 F.3d 874, 883
Here, the court infers that plaintiff is a member of a
protected class and that he was qualified for the position he
sought. Plaintiff has alleged enough facts that a plausible case
of discrimination based on race can be made out in that he
alleges that he was denied a more prestigious position, which was
filled by someone of another race. And, plaintiff alleges facts
to show that he was adversely treated and suffered as a result of
his complaints of discrimination as set forth in paragraphs 41-63
of his amended complaint. The court cannot discern, however, that
plaintiff has stated a claim of retaliation with regard to his
filing of a charge of discrimination with the EEOC. He has
alleged no facts from which to infer retaliation based on the
filing of the charge except for the proximity of the date of
filing the charge and the mandate to enter the EAP. Because he
does not allege that defendant even had notice of the filing of
the charge at the time it mandated he enter the EAP, there is no
basis for making such an inference.
A plaintiff alleging age discrimination must show either (1)
direct evidence of age discrimination or (2) indirect evidence of
age discrimination by showing a prima facie case, i.e., that
he is a member of a protected class; (2) he was qualified for the
(3) he was subjected to an adverse employment action;
and (4) he was either replaced by someone outside the protected
class, replaced by someone younger, or otherwise discriminated
against because of his age. Palasota v. Haggar Clothing Co., 342
F. 3d 569, 575-76 (5th Cir. 2003). Under the ADEA, plaintiff must
prove that the adverse employment action would not have occurred
but for his age. Reed v. Neopost USA,
Inc., 701 F.3d 434, 440
(5th Cir. 2012). Claims are analyzed in the same manner as under
Title VII. Mitchell v. Snow, 326 F. App'x 852, 854
2009). Although the Supreme Court has said that one need not
plead a prima facie case to survive a motion to dismiss,'
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the elements
are helpful in framing what constitutes an ADEA claim and whether
plaintiff has alleged enough to raise a right to relief above the
speculative level. Bell Atl., 550 U.S. at 555.
To establish a retaliation claim under the ADEA, plaintiff
must show that (1) he engaged in protected activity;
suffered an adverse employment action; and (3) a causal link
exists between the protected activity and the adverse employment
At least one collli has questioned whether Swierkiewicz is still good law following more recent
cases. Ellis v. City of Minneapolis, 860 F.3d II 06, 1112 (8"' Cir. 2017).
action. Wooten v. McDonald Transit Assocs., Inc., 788 F. 3d 490,
(5'" Cir. 2015),
In this case, plaintiff has not alleged any facts from which
the court could find a plausible case of age discrimination. The
only time age is mentioned is in reference to the first time
plaintiff expressed interest in the school resource officer
position at Chisholm Trail High School. Doc, 16 at 3, , 15. At
that time, plaintiff was told that the position had already been
promised to another officer, who happened to be younger than
plaintiff. No discrimination is alleged to have occurred in that
instance. Rather, the discrimination is alleged to have occurred
after that officer left the position and plaintiff again applied.
That time, the position went to "another Caucasian officer." 4 Id.
, 29. Age is not mentioned. Plaintiff has pleaded no facts
to show either a direct case of age discrimination or a prima
facie case of age discrimination. For example, plaintiff does not
plead any facts to show that the age gap between him and any
person alleged to have been treated more favorably was
significant enough to support an inference of age discrimination.
Jenkins v. City of San Antonio Fire Dep't, 784 F.3d 263, 268-69
(5'" Cir. 2015) (citing cases holding that an age gap of up to
The reference is confusing in that plaintiff never alleges his own race. Nevertheless, based on
the earlier reference to the "younger, Caucasian male," the comt infers that plaintiff is not of the
four years is insufficient to support an inference of
discrimination and that an age difference of five years is a
close question) .
As the Fifth Circuit has noted, there is no requirement that
the underlying claim of discrimination be valid to support a
claim of retaliation. Vadie v. Miss. State Univ., 218 F.3d 365,
(5th Cir. 2000); Nadeau v. Echostar, No. EP-12-CV-433-
KC, 2013 WL 5874279, at *25 (W.D. Tex. Oct. 30, 2013). Plaintiff
has alleged that he complained of discrimination based on age and
as a result he was punished by being denied an opportunity to
participate in better summer work. Doc. 16 at 5,
has at least stated a claim of retaliation under the ADEA on this
basis. As with the Title VII claim of retaliation, plaintiff has
not alleged enough facts from which an inference can be drawn
that he has a plausible retaliation claim based on the filing of
his EEOC charge. Plaintiff does not even allege the basis for
The court ORDERS that defendant's motion to dismiss be, and
is hereby, granted in part and plaintiff's claims based on 42
1981 and 1983, for retaliation under Title VII as a
result of filing his EEOC charge, for discrimination under the
ADEA, and for retaliation under the ADEA as a result of the
filing of his EEOC charge be, and are hereby, dismissed.
SIGNED September 11, 2017.
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