Nwakanma v. Novelli et al

Filing 55

MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART 50 MOTION to Dismiss 42 Amended Complaint/Counterclaim/Crossclaim etc..(Signed by Judge Keith P Ellison) Parties notified.(sloewe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BEKEE C. NWAKANMA, Ed.D.,

§
§
§
§
§ Case No. 4:10-cv-1128
§
§
§
§

Plaintiff,
v.
KAREN NOVELLI, et al.,
Defendants.

MEMORANDUM AND ORDER
Pending before this Court is Defendants’ Motion to Dismiss Plaintiff’s Second
Amended Complaint (Doc. No. 50). Defendants move to dismiss Plaintiff’s claims under
42 U.S.C. § 1981 (“Section 1981”) and his request for punitive damages against the
Texas Department of Criminal Justice (“TDCJ”). Defendants also seek to dismiss
portions of Plaintiff’s claims under 42 U.S.C. § 2000e-2 et seq. (“Title VII”) and 42
U.S.C. Section 1983 (“Section 1983”). As Plaintiff has voluntarily dismissed his claims
under Section 1981 and his request for punitive damages, the Court need only consider
Defendants’ motion insofar as it seeks to dismiss portions of Plaintiff’s claims under Title
VII and Section 1983.
I.

BACKGROUND
Bekee Nwakanma (“Plaintiff” or “Nwakanma”) sues Defendant TDCJ for

unlawful discrimination and retaliation in violation of Title VII. Plaintiff sues Lisa
Howard and Bobby Lumpkin for unlawful discrimination and retaliation under Section
1983. Plaintiff alleges that Defendants discriminated against him based upon his race
(black), his color, his national origin, and his religion (Seventh Day Adventist), and that

1

they retaliated against him for making complaints of discrimination. Both causes of
action arise from the same set of facts. 1
Before he was forced into retirement in 2011 (Pl. Am. Compl. ¶ 8), Nwakanma
had worked for the TDCJ for twenty (20) years. During this time, Nwakanma pursued
and attained additional degrees. (Id. ¶ 9.) Despite his education and experience,
Nwakanma never received a promotion in his 20 years with TDCJ. (Id.) While
Nwakanma’s career idled, other employees with lesser experience and fewer degrees—
and who are neither black nor Seventh Day Adventists—were promoted ahead of him.
(Id.) In one instance, Nwakanma was passed over for someone two experience levels
below him. (Id. ¶ 10.) In other instances, he was passed over for individuals who did not
even apply for the positions in question. (Id. ¶ 10.) Though never promoted, Nwakanma
was charged with handling responsibilities traditionally handled by those in the advanced
positions to which Nwakanma sought, and was denied, promotions.
Defendants also failed to give Nwakanma performance evaluations in 2007 and
2008, despite the fact that every other employee in his department was given such
evaluations. (Id. ¶ 11.) Plaintiff believes that the TDCJ’s failure to evaluate him was
intentional, and was part of an effort to hinder his ability to be considered for a
promotion. (Id.)
Nwakanma’s religion, Seventh Day Adventism, does not allow him to work on
Saturday. (Id. ¶ 13.) Despite the TDCJ’s awareness of his religious conflict, Nwakanma
was required to work on multiple Saturdays. (Id. ¶ 13.) Nwakanma also alleges that,

1

In considering a Rule 12(b)(6) motion to dismiss, the Court accepts the factual allegations in a plaintiff’s
complaint as true. Frame v. City of Arlington, 575 F.3d 432, 433-34 (5th Cir. 2009). For the purposes of
this Memorandum and Order, the Court pulls relevant facts from Plaintiff’s Second Amended Complaint
(“Pl. Am. Compl.”) (Doc. No. 42).

2

throughout his employment with the TDCJ, he was belitted, treated with continuing
disrespect, excluded from meetings and activities, and insulted because of his accent and
his religious practices. (Id. ¶ 17.)
Finally, Nwakanma alleges that he complained of discrimination and was
retaliated against for making such complaints. Defendants Lumpkin and Howard, who
were aware of his complaints of discrimination, placed Nwakanma on probation in
November, 2007. (Id. ¶ 14.) Nwakanma’s forced retirement, which he also alleges was
retaliatory, is the subject of a pending EEOC charge. He intends to add claims for
retaliation on the basis of his forced retirement as soon as he receives a “Right to Sue”
letter from the EEOC.
II.

Legal Standard
A court may dismiss a complaint for “failure to state a claim upon which relief

can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss,
a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiff’s
grounds for entitlement to relief—including factual allegations that when assumed to be
true ‘raise a right to relief above the speculative level.’” Cuvillier v. Taylor, 503 F.3d
397, 401 (5th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
That is, a complaint must contain sufficient factual matter that, if it were accepted as true,
would “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. ---,
129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A claim need not give
rise to “probability,” but need only plead sufficient facts to allow the court “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). A pleading also need not contain detailed factual allegations,

3

but go beyond mere “labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted).
While the court must accept well-pleaded facts as true, Iqbal, 129 S. Ct. at 1950,
it should neither “strain to find inferences favorable to the plaintiffs” nor “accept
‘conclusory allegations, unwarranted deductions, or legal conclusions.’” R2 Investments
LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (quoting Southland Sec. Corp. v.
Inspire Ins. Solutions, Inc., 365 F.3d 353, 362 (5th Cir. 2004)). The court should not
evaluate the merits of the allegation, but must satisfy itself only that plaintiff has
adequately pled a legally cognizable claim. United States ex rel. Riley v. St. Luke’s
Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004).
III.

ANALYSIS
Plaintiff asserts claims under Title VII and Section 1983 based upon

discrimination, hostile work environment, and retaliation. Defendants seek to dismiss
Plaintiff’s discrimination and hostile work environment claims to the extent that they are
based upon events that are not exhausted under Title VII or that took place outside of the
applicable statute of limitations under Section 1983.
A. Title VII Claims
As to Plaintiff’s Title VII claims, Defendants ask the Court to dismiss allegations
that took place more than 300 days prior to Plaintiff’s filing of a charge with the EEOC
on March 15, 2008. 2 Title VII filing deadlines are akin to statutes of limitation, and
dismissal under Rule 12(b)(6) is appropriate “where it is evident from the plaintiff’s

2

In states such as Texas that have an administrative agency with the authority to address complaints of
employment discrimination, the relevant time period for considering administrative exhaustion under 42
U.S.C. § 2000e-5(e)(1) is 300 days. See Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998).

4

pleadings that the action is barred and the pleadings fail to raise some basis for tolling or
the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003).
In his response to Defendants’ Motion to Dismiss, Plaintiff asserts that his
discrimination and hostile work environment claims are appropriate for adjudication
under a “continuing violation” theory. (Doc. No. 51.) The continuing violation doctrine
allows a plaintiff to pursue claims for events taking place outside of the actionable period
if the plaintiff can show “an organized scheme leading to and including a present
violation, such that it is the cumulative effect of the discriminatory practice, rather than
any discrete occurrence, that gives rise to the cause of action.” Huckabay v. Moore, 142
F.3d 233, 239 (5th Cir. 1998) (citations omitted). In National Railroad Passenger Corp.
v. Morgan, the Supreme Court considered the continuing violation doctrine, and
concluded, in line with Fifth Circuit precedent, 3 that Title VII plaintiffs may not raise
claims based on “discrete acts of discrimination” taking place outside of the statutory
period. 536 U.S. 101, 102-03 (2002). On the other hand, hostile work environment claims
are not time barred so long as all acts constituting such claims are part of the same
unlawful practice, and at least one act falls within the filing period. Id. at 103-04.
1. Discrimination
In light of the Supreme Court’s holding in Morgan, the question with regard to
Plaintiff’s discrimination claims is whether the allegations are instances of discrete
discrimination, barred to the extent that they precede Plaintiff’s EEOC charge by more
than 300 days, or whether they represent a continuing violation. In determining whether a

3

The Fifth Circuit has noted that the Supreme Court’s decision in Morgan did not change the law in the
Fifth Circuit with respect to discrete acts. Celestine v. Petroleos De Venezuela SA, 108 F. App’x 180, 186
n. 8 (5th Cir. 2004).

5

continuing violation exists, the Fifth Circuit has identified at least three factors that may
be considered: (1) whether the alleged acts involve the same type of discrimination,
tending to connect them in a continuing violation; (2) whether the alleged acts recur, or
whether they are more in the nature of an isolated work assignment or incident; and (3)
whether the act has the degree of permanence which should trigger an employee’s
awareness of and duty to assert his or her rights. Celestine v. Petroleos de Venezuella SA,
266 F.3d 343, 352 (5th Cir. 2001) (citing Huckabay, 142 F.3d at 239).
Plaintiff’s discrimination claim is based upon (1) Defendants’ failure to promote
him throughout his 20 year career at TDCJ, and (2) Defendants’ failure to give him
performance evaluations in 2007 and 2008. “[A] one-time employment event, including
the failure to hire, promote, or train and dism[iss]als or demotions, is ‘the sort of discrete
and salient event that should put the employee on notice that a cause of action has
accrued.”’ Celestine, 266 F.3d at 352 (quoting Huckabay, 142 F.3d at 240). In most
cases, then, claims based on a failure to promote are properly considered discrete acts of
discrimination to which the continuing violation doctrine does not apply. However, this
categorization is inapposite in cases where it is not a singular failure to promote, but the
cumulative effect of a number of such failures, that puts a plaintiff on notice that a cause
of action exists. In such a case, each individual failure to promote would not be a discrete
act of discrimination; rather, the series of failures to promote would be considered a
continuing violation. The question is whether such a situation is present in this case. The
Court interprets Plaintiff’s Complaint—which seems not focus not on the individual
failures to promote, but on the fact that Plaintiff was never promoted in 20 years at
TDCJ—to allege just such a situation.

6

Though some of Plaintiff’s claims falling outside of the 300 day period may
therefore proceed, others—those based on discrete acts of discrimination outside of the
300 day period—may not. The parties have informed the Court that Plaintiff brought
claims of discrimination against these Defendants in previous lawsuits. Any allegedly
discriminatory act on which Plaintiff has already brought suit may not form the basis of
Plaintiff’s discrimination claim in this case, since any act for which he brought a claim in
the past is an act about which he was on notice that a cause of action had accrued, and is
therefore a discrete act of discrimination. Thus, to the extent that Plaintiff’s past
lawsuit(s) addressed claims for failures to promote, those claims are discrete instances of
discrimination, and may not be brought in this case. Cf. Merriman v. Potter, 251 F.
App’x 960, 965 (5th Cir. 2007) (finding that the plaintiff’s continuing violation argument
was weakened by the fact that she made multiple prior complaints to supervisors about
the alleged harassment).
In addition to alleging a failure to promote, Nwakanma also alleges that
Defendants failed to give him performance evaluations in 2007 and 2008. The question,
again, is whether Defendants’ alleged failures to give performance evaluations were
discrete acts of discrimination, or whether they were one, continuing violation. If the
performance evaluations should have come at regular intervals, and failure to receive one
such evaluation would have put an employee on notice that a cause of action had accrued,
then failure give an evaluation would be a discrete act. On the other hand, if evaluations
were not anticipated at regular intervals, and it was only after failing to receive
evaluations for two years that Plaintiff realized that a cause of action existed, then failure
to give performance evaluations could be considered a continuing violation. At this stage,

7

Plaintiff has pled sufficient facts to overcome Defendants’ Motion to Dismiss; however,
evidence that Plaintiff was on notice of specific failures to evaluate him may be
addressed at the summary judgment stage.
Thus, as to Plaintiff’s Title VII discrimination claims, the Court concludes that
Defendants’ failures to promote and to give performance evaluations were continuing
violations insofar as they were part of an organized scheme, the cumulative effect of
which was a discriminatory practice. These claims may proceed to the extent that (1) they
were not the subject of an earlier lawsuit by Nwakanma against these Defendants; and (2)
the final event putting Plaintiff on notice and giving rise to the cause of action took place
within the 300 day statutory period. The Court directs Plaintiff to file an amended
complaint alleging only those violations that are consistent with this holding.
2. Hostile Work Environment
Because hostile work environment claims, by their very nature, involve repeated
conduct, the unlawful employment practice giving rise to a Title VII claim cannot be said
to occur on any particular day. Rather, practices creating a hostile work environment
occur “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.” Morgan, 536 U.S. at 103
(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). Determining whether an
actionable hostile work environment claim exists requires an examination of all the
circumstances, including the frequency and severity of the discriminatory conduct,
whether the conduct is physically threatening or humiliating, and whether the conduct
unreasonably interferes with an employee’s work performance. Harris, 510 U.S. at 23.

8

In their Motion to Dismiss, Defendants do not dispute that the facts alleged, if
they are within the relevant statutory period, are sufficient to allege a hostile work
environment. The Court therefore determines that Plaintiff’s hostile work environment
claims may proceed. However, as Plaintiff has brought lawsuits against these Defendants
in the past, the Court will only consider allegations related to events taking place after
Plaintiff’s most recent lawsuit. Events before the filing of that lawsuit may not comprise
Plaintiff’s hostile work environment claim. Plaintiff is instructed to include in his
amended complaint only those claims which have not yet been raised in a previous
lawsuit.
B. Section 1983 Claims
The analysis of Plaintiff’s Section 1983 claims differs little from the Title VII
analysis. Defendants ask the Court to dismiss allegations based upon events which took
place outside of the statute of limitations applicable to Section 1983 claims. Because
there is no federal statute of limitations governing Section 1983 claims, federal courts
look to the law of the state in which the action arose to determine the appropriate
limitations period, usually borrowing the state’s general personal injury statute of
limitations. See Hardin v. Straub, 490 U.S. 536, 538 (1989). In Texas, “the applicable
statute provides that claims must be brought ‘not later than two years after the day the
cause of action accrues.’ ” Price v. City of San Antonio, 431 F.3d 890, 892 (5th Cir.
2005) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon 2005)).
Plaintiff filed his original complaint on April 7, 2010; the statute of limitations for
his Section 1983 claims began to run two years prior, on April 7, 2008. Thus, in this case,
all allegedly wrongful acts occurring before April 7, 2008 are time-barred unless they are

9

part of a continuing violation or are based on a hostile environment theory, as discussed
above. See Rodriguez v. Gonzalez, 2006 WL 2844185, at *1 (S.D. Tex. Oct. 2, 2006)
(citing Morgan, 536 U.S. at 115-18) (noting that the rationale applied in the context of
Title VII filing deadlines applies to Section 1983’s statute of limitations for hostile work
environment claims). Thus, those of Plaintiff’s claims that may proceed under Title VII
are likewise appropriate under Section 1983. The only difference is that Plaintiff’s
Section 1983 claims may date back to April 7, 2008, whereas his Title VII claims may
date back to July 20, 2007.
IV.

CONCLUSION
Defendants’ Motion to Dismiss (Doc. No. 7) is GRANTED IN PART and

DENIED IN PART. Plaintiff is instructed to file an amended complaint within twenty
(20) days that is consistent with this Memorandum and Order.
IT IS SO ORDERED.
SIGNED this the 18th day of October, 2011.

_
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE

10