Evans-Rhodes v. Northwest Diagnostic Clinic, P.A.

Filing 12

MEMORANDUM AND ORDER granting in part, denying in part 5 MOTION to Dismiss for Failure to State a Claim. (Signed by Judge Keith P Ellison) Parties notified.(glyons, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
VANESSA EVANS-RHODES
Plaintiff,
VS.
NORTHWEST DIAGNOSTIC
CLINIC, P.A.
Defendant.

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Civ. Action No. 4:13-cv-01626

MEMORANDUM & ORDER
This case arises out of Plaintiff Vanessa Evans-Rhodes’s (“Plaintiff’s” or “Ms. EvansRhodes’s”) employment with — and termination by — Defendant Northwest Diagnostic Clinic,
P.A. (‘Defendant” or “Northwest Diagnostic”). Before the Court is Defendant’s Motion to
Dismiss for Failure to State a Claim. (Doc. No. 5.) After considering the Motion, all responses
and replies, and the applicable law, the Court concludes that the Motion should be GRANTED
IN PART AND DENIED IN PART.
I.

BACKGROUND1
Plaintiff Vanessa Evans-Rhodes, an African-American woman, began working for

Defendant Northwest Diagnostic Clinic in early January 2011 as a Healthcare Coding
Specialist/Auditor. (Doc. No. 1 ¶5.)
The events relevant to this action began on June 2, 2011. (Id. ¶ 7.) On that date, one of
Plaintiff’s co-workers, Sonya Taylor, who Plaintiff avers is a white woman, made a “racially
derogatory comment toward African Americans” to Ms. Evans-Rhodes.2 (Id. ¶ 7.) Highly

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For the purposes of a Motion to Dismiss, the Court takes Plaintiff’s factual allegations as true. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007).
2
The record does not disclose exactly what was said.

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offended, Ms. Evans-Rhodes immediately sought out her supervisor, Pam Audish, who Plaintiff
also avers is white, to lodge a complaint. (Id. ¶¶ 6, 8.) Ms. Audish suggested that Plaintiff
“needed to sleep on it,” which to Plaintiff implied that “she needed to really think about whether
or not she truly wanted to lodge such a complaint.”

(Id. ¶ 9.)

Ms. Evans-Rhodes also

complained to the director of Human Resources about Ms. Taylor’s comment. (Id. ¶ 10.) On
June 7, 2011,3 Plaintiff was terminated. (Id. ¶ 12.)
Plaintiff avers that she has filed a Charge of Discrimination with the EEOC and that the
EEOC made a Determination of Retaliation in her favor and issued a notice of right to sue. (Id.
¶¶ 4, 14.) In this suit, Ms. Evans-Rhodes brings claims of race discrimination and retaliation,
pursuant to both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, and 42
U.S.C. § 1981, and a hostile work environment under Title VII. Defendants now move to
dismiss under Federal Rule of Civil Procedure 12(b)(6).
II.

LEGAL STANDARD
A court may dismiss a complaint for a “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)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, a complaint must
“contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A
claim has facial plausibility “when the plaintiff pleads factual content that allows the court to
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Plaintiff’s Complaint avers that she was terminated on June 7, 2013. (Id. ¶ 12.) However, because her complaint
earlier stated that she was employed only from January until June 2011, (id. ¶ 5), and because her lawsuit was filed
June 3, 2013, the Court assumes this to be a typographical error and that all relevant events occurred in 2011.

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556). The plausibility standard “is not akin to a
‘probability requirement,’” though it does require more than simply a “sheer possibility” that a
defendant has acted unlawfully. Id. at 678. Thus, a pleading need not contain detailed factual
allegations, but must set forth more than “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).
III.

ANALYSIS
A. Race Discrimination
Title VII makes it “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, sex, or national origin.” 42 U.S.C. § 2000e–2(a). Similarly, the Civil
Rights Act of 1866, 42 U.S.C. § 1981, prohibits racial discrimination, both public and private, in
the making or enforcement of contracts. 42 U.S.C. § 1981. In both types of cases,4 the plaintiff
bears the burden of proving a prima facie case that the defendant made an employment decision
that was motivated by a protected factor. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-03 (1973).
Under the McDonnell Douglas framework, to state a prima facie case, the plaintiff must
show that (i) she is a member of a protected class; (ii) she is qualified for the position; (iii) an
adverse employment action occurred; and (iv) she was replaced by someone outside the
protected group or was treated less favorably than other similarly situated employees outside the
protected group. Id. at 802; see also McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir.
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“The analysis for claims under § 1981 and Title VII [is] identical.” Hall v. Cont’l Airlines, Inc., 252 F. App’x
650, 653 (5th Cir. 2007) (citing Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 992 (5th Cir. 2005); Raggs v.
Miss. Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002)).

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2007). If the plaintiff makes a prima facie showing, the burden then shifts to the defendants “to
articulate a legitimate, nondiscriminatory . . . reason for [the] employment action.” Id. at 557. If
the defendants meet the burden of production, then the plaintiff must show that the proffered
reason is a mere pretext for the true, discriminatory purpose. Id.
Importantly, however, “[t]he prima facie case under McDonnell Douglas . . . is an
evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema N. A., 534 U.S. 506,
510 (2002). This is so, at least in part, because “[b]efore discovery has unearthed relevant facts
and evidence, it may be difficult to define the precise formulation of the required prima facie
case in a particular case.” Id. at 512. To harmonize Swierkiewicz with Twombly and Iqbal,
courts — including this one — have explained that “‘while a complaint need not contain specific
facts establishing a prima facie case of employment discrimination to overcome a Rule 12(b)(6)
motion to dismiss, it must nevertheless give fair notice of the basis of Plaintiff’s claims, and the
claims must be facially plausible.’” E.E.O.C. v. Bass Pro Outdoor World, LLC, 884 F. Supp. 2d
499, 517 (S.D. Tex. 2012) (Ellison, J.) (quoting Gillman v. Inner City Broad. Corp.,
08CIV.8909LAP, 2009 WL 3003244, at *4 (S.D.N.Y. Sept. 18, 2009)); see also Bass Pro, 884
F. Supp. 2d at 515-16 (collecting cases).
This is a close question. Defendant is correct that the racially insensitive remark of
Plaintiff’s colleague cannot, as a matter of law, constitute “an act of discrimination” cognizable
under Title VII. (Doc. No. 5 at 4.) Rather, the only “ultimate employment action” at issue here
is Plaintiff’s termination. See Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004)
(explaining that “an adverse employment action consists of ultimate employment decisions such
as hiring, granting leave, discharging, promoting, and compensating.” (internal quotation marks
and citation omitted)).

But, even so, inferences can be drawn from Ms. Evans-Rhodes’s

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allegations that a colleague made a racially insensitive comment, that a supervisor expressed
some reservations about addressing that incident, that plaintiff complained without result to
Human Resources about racial insensitivity, and, of course, that Plaintiff was ultimately
terminated. It may even be possible to infer that Plaintiff was subjected to racial discrimination
in violation of Title VII and Section 1981. Taking her factual allegations as true, it seems
plausible — if perhaps not probable — that an entity that employed an individual who made a
racially insensitive remark and a supervisor who discouraged reporting it also terminated
Plaintiff because of her race.
On the other hand, the Court finds persuasive Defendant’s argument that Plaintiff’s
Complaint seems to focus upon alleged retaliation, and not racial animus, as the basis for
Plaintiff’s termination. (Doc. No. 5 at 4.) Indeed, in a number of places Ms. Evans-Rhodes’s
Complaint sets up a cause-and-effect type relationship between her voicing a grievance and her
termination. (See Doc. No. 1 ¶¶ 12, 16, 17.) From the face of the Complaint what seems most
likely is that Plaintiff’s colleague made a racially insensitive remark, which would not on its own
be enough to give rise to a race discrimination claim, Plaintiff complained about it, and that she
was terminated on account of her complaints.
In the end, though, the Court finds that Plaintiff has pleaded enough facts to overcome
Defendant’s Motion to Dismiss. It is perhaps true that her race discrimination and retaliation
claims are still somewhat intertwined. But that is what discovery is for. Plaintiff has “give[n]
the defendant fair notice of what h[er] claim[] are and the grounds upon which [it] rest[s],”
Cornish v. Lancaster Indep. Sch. Dist., CIV.A. 304CV2368G, 2005 WL 170717, at *2 (N.D.
Tex. Jan. 24, 2005), and so the Court will allow it to proceed.

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B. Retaliation
To establish a prima facie case of retaliation under Title VII, Plaintiff must show that (1)
she participated in an activity protected by Title VII; (2) her employer took an adverse
employment action against her; and (3) a causal connection exists between the protected activity
and the materially adverse action. Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484 (5th
Cir. 2008). “‘Protected activity is defined as opposition to any practice rendered unlawful by
Title VII, including making a charge, testifying, assisting, or participating in any investigation,
proceeding, or hearing under Title VII.’” Ackel v. Nat’l Communications, Inc., 339 F.3d 376,
385 (5th Cir. 2003) (quoting Green v. Administrators of the Tulane Educational Fund, 284 F.3d
642, 657 (5th Cir. 2002)). The Supreme Court has “h[e]ld that 42 U.S.C. § 1981 encompasses
claims of retaliation.” CBOCS West., Inc. v. Humphries, 553 U.S. 442, 457 (2008). Here too,
the courts are to use the standard that they apply in Title VII cases. See Davis v. Dallas Area
Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004).
As with race discrimination, plaintiff need not have pleaded all the elements of retaliation
to survive a motion to dismiss, but “the Court may explore the plaintiff’s prima facie case at the
dismissal stage to determine ‘whether the plaintiff can ever meet his initial burden to establish a
prima facie case.’” Brantley v. Kempthorne, CIV.A. 06-1137ESH, 2008 WL 2073913, at *6
(D.D.C. May 13, 2008) (quoting Rochon v. Ashcroft, 319 F.Supp.2d, 23, 29 (D.D.C. 2005)).
Plaintiff has certainly pleaded that Defendant took an adverse employment action against her.
Further, because Ms. Evans-Rhodes alleges that just a few days passed between her complaints
and her termination, the Court can infer a causal relationship between the two. What gives the
Court pause, however, is with the first element of a retaliation claim: whether Plaintiff voiced

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“opposition to any practice rendered unlawful by Title VII . . . or participat[ed] in any
investigation, proceeding, or hearing under Title VII.” Ackel, 339 F.3d at 385 (citation omitted).
Relevant here is that first clause, the so-called ‘opposition clause.’ “Magic words are not
required, but protected opposition must at least alert an employer to the employee’s reasonable
belief that unlawful discrimination is at issue.” Brown v. United Parcel Serv., Inc., 406 F. App’x
837, 840 (5th Cir. 2010). Plaintiff has pleaded that she reported to her superiors and to Human
Resources (and thereby opposed) a “racially derogatory comment” made by a colleague.
Defendant’s primary argument is that, without greater specificity, it is impossible to know
“whether Plaintiff reported an unlawful employment practice.” (Doc. No. 5 at 5-6.)
Plaintiff need only have had “a reasonable belief that the employer was engaged in
unlawful employment practices.” Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d
1130, 1140 (5th Cir. 1981). Such a belief cannot be reasonable if it is settled law that the
conduct in question does not amount to an unlawful employment practice. See Wilson v. Delta
State Univ., 143 F. App’x 611, 613-14 (5th Cir. 2005) (explaining that Payne seeks to protect the
plaintiff who has a mistaken belief as to whether certain conduct is occurring, not the plaintiff
who is incorrect as to whether certain conduct is unlawful); Byers v. Dallas Morning News, Inc.,
209 F.3d 419, 428 (5th Cir. 2000) (“To satisfy the ‘opposition clause,’ Byers need not prove that
[defendant’s] practices were actually unlawful, but only that he had ‘a reasonabl[e] belief that the
employer was engaged in unlawful employment practices.’” (quoting Payne)); Kummerle v. EMJ
Corp., 3:11-CV-2839-D, 2012 WL 2995065 (N.D. Tex. July 23, 2012) aff’d, 12-10869, 2013
WL 2248029, at *4 (5th Cir. May 16, 2013) (“A plaintiff’s belief is not objectively reasonable if
the law is settled that the employment practice complained of is not unlawful under Title VII.”).

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Applying that standard to this case, to state a viable retaliation claim, Ms. Evans-Rhodes
needs to have believed that the comment she reported constituted an unlawful employment
practice. And even if she did, her belief cannot run counter to settled federal law. The Court can
infer that Plaintiff subjectively believed she was opposing an unlawful employment practice.
But the law is all but settled that a single racially derogatory remark cannot amount to an
unlawful employment practice. It certainly cannot constitute race discrimination as would be
independently actionable under Title VII, as it did not involve an ultimate employment decision.5
And for the reasons set forth below, a single racially insensitive comment cannot, without more,
constitute a hostile work environment. As such, Plaintiff has not pleaded sufficient facts from
which this Court could infer plausible retaliation claims; the Court must therefore dismiss them.
C. Title VII Hostile Work Environment
To prevail on a Title VII hostile work environment claim, “a plaintiff must prove he (1)
belongs to a protected group; (2) 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.” Hernandez v. Yellow Transp., Inc., 670
F.3d 644, 651 (5th Cir. 2012) (quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)),
cert. denied, 133 S. Ct. 136 (2012). In order to affect a “term, condition, or privilege of

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It may, at first blush, appear counterintuitive that the Court has allowed Plaintiff’s race discrimination claim to
proceed, but has also determined that her colleague’s comment cannot as a matter of law be characterized as race
discrimination so as to constitute an unlawful employment practice. The difference is that, when considering
whether Plaintiff has stated a claim of race discrimination, all of her allegations — the co-worker’s comment, the
supervisor’s response, and Plaintiff’s ultimate dismissal — can be considered. In contrast, on the more specific
issue of whether the actions that Plaintiff opposed are enough to support a retaliation claim, the Court can only
consider those actions which she alleges she brought to her employer’s attention. Here, that is only her colleague’s
comment. (See Doc. 1 ¶¶ 8-10.) Put another way, for race discrimination, the Court looks at the whole timeline of
events; for the opposition component of a retaliation claim, the Court must press “pause” when Plaintiff alerted her
employer of alleged wrongdoing and look backward to see whether race discrimination had already taken place.
Here, taking everything in the Complaint as true, as a matter of law, it had not.

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employment,” harassment must be “sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.” Id. (citing Ramsey, 286 F.3d
at 268). In determining whether an environment is “hostile” or “abusive” within the meaning of
Title VII, courts look at the totality of the circumstances, including “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005)
(quoting Harris v. Forklift, 510 U.S. 17, 23 (1993)). “To be actionable, the challenged conduct
must be both objectively offensive, meaning that a reasonable person would find it hostile and
abusive, and subjectively offensive, meaning that the victim perceived it to be so.” Id. (quoting
Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 1999)).
Plaintiff has included in her complaint only the one racially derogatory comment.
Defendant contends that a single comment, on its own, is “legally insufficient” to support a
hostile work environment claim. (Doc. No. 5 at 6.) That is not technically true. The Supreme
Court has left open the possibility that an isolated incident, if “extremely serious,” could suffice.
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Indeed, while the courts of appeals
and fellow district courts do generally require a series of incidents to support a hostile work
environment claim, most have declined to rule out that a single “extremely serious” incident
could, on its own, suffice. See E.E.O.C. v. WC&M Enterprises, Inc., 496 F.3d 393, 400 (5th Cir.
2007) (“Under the totality of the circumstances test, a single incident of harassment, if
sufficiently severe, could give rise to a viable Title VII claim . . .”); DiCenso v. Cisneros, 96
F.3d 1004, 1008 (7th Cir. 1996) (“Though sporadic behavior, if sufficiently abusive, may support
a [discrimination] claim, success often requires repetitive misconduct.” (internal quotation marks

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and citation omitted)); Early v. Wyeth Pharm., Inc., 603 F. Supp. 2d 556, 578 (S.D.N.Y. 2009)
(“Isolated incidents will generally not suffice, however, a single incident that was extraordinarily
severe . . . will suffice.” (internal quotation marks and citation omitted)).
Yet a whole host of incidents that seem to this Court to be highly severe and patently
offensive have been found by other courts to be insufficient, on their own, to support a hostile
work environment claim. See Hiner v. McHugh, 12-51123, 2013 WL 4034421, at *5 (5th Cir.
Aug. 9, 2013) (finding that plaintiff’s colleague’s use of the phrase “black ass” was “based on
race,” but not “sufficiently severe or pervasive to alter the conditions of [plaintiff’s]
employment” so as to “create an abusive working environment”); McCullar v. Methodist Hosp.
of Dallas, 3:10-CV-1895-K, 2012 WL 760074, at *17 (N.D. Tex. Mar. 8, 2012) (holding that a
“reference to a noose is certainly racially inappropriate, highly insensitive, and basically
inexcusable” but not “sufficiently severe and pervasive”); Duran v. LaFarge N. Am., Inc., 855 F.
Supp. 2d 1243, 1248 (D. Colo. 2012) (finding insufficient “one instance of Plaintiff being
referred to as a ‘dirty Mexican’”); Ghaly v. U.S. Dep’t of Agric., 739 F. Supp. 2d 185, 196
(E.D.N.Y. 2010) (“The Court finds that the ‘go help your brother’ comment allegedly made by
Greenberg is insufficient alone to support a Title VII hostile work environment claim.”); Friend
v. Interior Sys., Inc., 3:00CV-2170-P, 2002 WL 1058210, at *21 (N.D. Tex. May 23, 2002) aff'd,
69 F. App’x 659 (5th Cir. 2003) (holding that plaintiff’s co-worker saying “[d]on’t no nigger tell
me what to do” was “surely offensive,” but as a “stray or isolated remark,” it was “not sufficient
to make out a claim for racial harassment”). In contrast, Plaintiff has not cited any case in which
a single incident sufficed to show a hostile work environment.6

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The Court also failed independently to locate an example of a single racially-charged comment sufficing to give
rise to a hostile work environment claim. In the context of sexual harassment, at least one court has found that an
employer ignoring sexual assault — even where it occurred only once — was sufficiently severe. Lockard v. Pizza
Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998) (“Grabbing Ms. Lockard’s hair and breast while she attempted to

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Thus, Plaintiff’s contention that she must only “me[e]t a low burden” at this juncture is
only partially true. (Doc. 6 at 7.) Procedurally, she is correct — her claim must only be
plausible. But substantively, Ms. Evans-Rhodes is mistaken. If she intends to rely on a single
incident to show a hostile work environment, the bar is extremely high.

Putting the two

standards together, she must show that it is plausible that this case is that exceeding rare —
indeed, perhaps the first — case where one comment is enough. Ms. Audish’s unhelpful reaction
to Ms. Evans-Rhodes’s complaint is not insignificant. Cf. Butler v. MBNA Tech., Inc., 111 F.
App’x 230, 235 (5th Cir. 2004) (examining, in its analysis of whether a single incident was
sufficiently severe to create hostile work environment, the personnel department’s response to
offensive actions by plaintiff’s supervisor). But even adding that reaction into the mix, the Court
just finds it too difficult to infer from Plaintiff’s relatively sparse complaint that this could be the
extremely rare instance where a single remark standing all by itself created a hostile work
environment. Accordingly, the Court must grant Defendant’s motion.
IV.

LEAVE TO AMEND
Federal Rule of Civil Procedure 15 provides that this Court “should freely give leave

when justice so requires.” Cole v. Sandel Med. Indus., LLC., 413 Fed. App’x. 683, 688 (5th Cir.
2011) (quoting Fed. R. Civ. P. 15(a)(2)). In considering whether to grant leave to amend, the
Court may weigh multiple factors, including undue delay, bad faith or dilatory motive, repeated
failure to cure deficiencies, undue prejudice, and futility. Wimm v. Jack Eckerd Corp., 3 F.3d
137, 139 (5th Cir. 1993); see also United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d
262, 270 (5th Cir. 2010) (holding that denial of leave to amend may be appropriate when

take their orders and serve their beer is physically threatening and humiliating behavior which unreasonably
interfered with Ms. Lockard’s ability to perform her duties as a waitress.”). But as the Tenth Circuit noted there,
that was “more than a mere offensive utterance.” Id. Plaintiff here has not offered any factual allegations from
which the Court can infer that Ms. Taylor did more than make an offensive remark.

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amendment would be futile); Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir.
2000) (holding that a proposed amendment is futile if “the amended complaint would fail to state
a claim upon which relief can be granted”). The Court cannot say that amendment of Plaintiff’s
retaliation and hostile work environment claims would be futile; it therefore grants leave to
amend those claims within 20 days.
V.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED IN PART

AND DENIED IN PART. It is granted with respect to Plaintiff’s retaliation and hostile work
environment claims. Those claims are dismissed without prejudice. The motion is denied as to
the race discrimination claims.
IT IS SO ORDERED.
SIGNED at Houston, Texas on this 11th day of October, 2013.

KEITH P. ELLISON
UNITED STATES DISTRICT COURT JUDGE

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