Tymczak v. Texas Southern University
OPINION AND ORDER granting 5 Motion to Dismiss. Plaintiff's discrimination claim under Title VII is dismissed without prejudice. Plaintiff has 30 days from the date of this order is served to amend his complaint.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CHRISTOPHER J. TYMCZAK,
TEXAS SOUTHERN UNIVERSITY,
April 18, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:16-CV-2621
OPINION AND ORDER
Before the Court is Defendant’s Motion to Dismiss (Doc. 5), as well as Plaintiff’s
Response (Doc. 6) and Defendant’s Reply (Doc. 7). Upon review and consideration of these
filings, relevant legal authority, and for the reasons explained below, the Court finds that
Defendant’s Motion to Dismiss should be granted.
Plaintiff Christopher Tymczak (“Plaintiff” or “Tymczak”), a Caucasian male, has been
employed as a tenured faculty member at Texas Southern University (“Defendant”) since 2006.
Doc. 1 at 3. Plaintiff alleges that Defendant discriminated against him because of his race in
violation of Civil Rights Act, 42 U.S.C. § 2000e, through the discriminatory actions of his
supervisor. Id. at 1, 4.
At relevant times Plaintiff was under the administrative supervision of Carlos R. Handy
(“Handy”), an African-American male. Id. at 4. Plaintiff alleges that Handy subjected Plaintiff to
disparate treatment because of his race. Id. Plaintiff states that Handy made derogatory
comments and criticisms of his teaching and research, opposed his “professional advancement”
by disparaging his qualifications for promotion and tenure, interfered with his research efforts,
subjected him to harassment and accusations, and denied him employment opportunities. Id. at
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4–5. Plaintiff also asserts that Handy “interfere[d] with his faculty compensation, including
improper reduction in pay, and block[ed] . . . payment from research grants.” Id. at 5. According
to Plaintiff, complaints against Handy’s actions toward Tymczak and other non-AfricanAmerican faculty members were presented to University officials. Id. at 6. Plaintiff contends
that, while Defendant agreed to mediation regarding these complaints, it did not “provide any
opportunity for interactive discussions of a mutually acceptable resolution,” nor did Defendant
implement the proposal for resolution following mediation. Id. at 7. On June 15, 2015, Plaintiff
filed charges of racial discrimination with the Equal Employment Opportunity Commission
(“E.E.O.C.”). Id. On June 1, 2016, Plaintiff received notice of his right to sue. Id. at 9. Plaintiff
then timely filed suit on August 29, 2016. Id.
In its Motion to Dismiss, Defendant asserts that, under Fed. R. Civ. P. 12(b)(6),
Defendant is not subject to liability because Plaintiff did not plead sufficient facts to support his
discrimination claim under Title VII. According to Defendant, Plaintiff’s Complaint fails to
allege: (1) that any adverse employment action was suffered by Plaintiff; (2) that other similarlysituated employees were treated more favorably; and (3) any facts giving rise to a reasonable
inference of discrimination against Plaintiff. Doc. 5 at 3–5. Further, Plaintiff failed to allege
sufficient facts to support a retaliation claim under Title VII. Id. at 5. In his Response Plaintiff
contends that, even evaluated under McDonnell Douglas, his Complaint properly pleads
discrimination because interference with compensation is an adverse action. Doc. 6 at 2–3.
Furthermore, Plaintiff argues that the allegation that similarly situated African-American
individuals were not treated in the same manner is “implicit” in the Complaint. Id. at 3. Plaintiff
also asserts that his “articulation of a practice” by an employee of Defendant to “mistreat
individuals who are not African-American establishes a plausible claim of invidious racial
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discrimination.” Id. at 4. Additionally, Plaintiff states that retaliation was not intended as a claim
in the Complaint; the word “retaliation” was merely used in the prayer for injunctive relief
against future retaliation. Id. at 5. However, Plaintiff reserves the right to state such a claim in a
subsequent pleading. Id. Therefore the Court will only consider Defendant’s arguments
regarding Plaintiff’s claim of discrimination.
II. Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the filing of a motion to
dismiss a case for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of [his] entitlement to
relief requires more than labels and conclusions, and a formulaic recitation of a cause of action’s
elements will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167
L.Ed.2d 929 (2007) (internal quotations omitted). A plaintiff must allege sufficient facts to state
a claim that is “plausible” on its face. Id. at 569. A claim is facially plausible when a “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, 676, 129 S. Ct. 1937, 1949,
173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556). However, a Rule 12(b)(6) motion to
dismiss “is viewed with disfavor and is rarely granted.” Kaiser Aluminum & Chem. Sales v.
Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). Therefore, the complaint must be
liberally construed in favor of the plaintiff, all reasonable inferences are to be drawn in favor of
the plaintiff’s claims, and all factual allegations pleaded in the complaint must be taken as true.
Overton v. JMPC Chase Bank, No. CIV. A. H-09-3690, 2010 WL 1141417, at *1 (S.D. Tex.
March 20, 2010) (citing Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986)). It is
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the court’s responsibility to determine whether the plaintiff has stated a legally cognizable claim
that is plausible, not to evaluate the plaintiff’s likelihood of success. Id. However, conclusory
allegations and unwarranted factual deductions will not suffice to avoid a motion to dismiss.
United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir.
2003). “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it
stops short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 129 S.
Ct. at 1949 (quoting Twombly, 550 U.S. at 557) (internal quotations omitted).
“When a plaintiff’s complaint must be dismissed for failure to state a claim, the plaintiff
should generally be given at least one chance to amend the complaint under Rule 15(a) before
dismissing the action with prejudice.” Steward v. Aries Freight Systems, L.P., No. CIV.A. H-071651, 2007 WL 3001660, at *2 (S.D. Tex. Oct. 12, 2007) (citing Great Plains Trust Co. v.
Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002)).
Under section 703(a) of Title VII, 42 U.S.C. § 2000e–2(a)(1), it is “an unlawful
employment action 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, religion, sex, or
Under the statute, suit may be brought under two distinct theories of discrimination,
disparate treatment and disparate impact. International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); Pacheco v. Mineta, 448 F.3d 783,
787 (5th Cir. 2006). “Title VII expressly prohibits both (1) intentional discrimination based on
race, color, religion, sex or national origin, known as ‘disparate treatment,’ as well as (2) an
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employer’s facially neutral practices that are discriminatory in operation against protected groups
(race, color, religion, sex or national origin) and not required by the nature of the job, known as
‘disparate impact.’” Agoh v. Hyatt Corp., 992 F. Supp. 2d 722, 732 (S.D. Tex. 2014) (citing 42
U.S.C. §§ 2000e–2(a)(1) and 2000e(k)(1)(A)); see also Ricci v. DeStefano, 557 U.S. 557, 129 S.
Ct. 2658, 2672–73, 174 L. Ed. 2d 490 (2009); Pacheco, 448 F.3d at 787. The instant suit is one
for disparate treatment, which requires proof of discriminatory motive. Agoh, 992 F. Supp. 2d at
732 (citing Pacheco, 448 F.3d at 787).
On a Rule 12(b)(6) motion to dismiss, it is not necessary for the Court to follow the Title
VII burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973). Johnson v. Alice
Independent School Dist., No. CIV.A. C-12-170, 2012 WL 4068678, at *3 (S.D. Tex. Sept. 14,
2012). “[T]he McDonnell Douglas framework is an evidentiary standard, not a rigid pleading
requirement.” Puente v. Ridge, 324 F. App’x. 423, 427 (5th Cir. 2009) (citing Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 506–07, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002)). However, the Fifth
Circuit has explained that courts “may consider the McDonnell Douglas framework, and no
plaintiff is exempt from her obligation to ‘allege facts sufficient to state all the elements of her
claim.’” Puente, 324 F. App’x. at 427–28 (quoting Mitchell v. Crescent River Port Pilots Ass’n,
265 F. App’x. 363, 370 (5th Cir. 2008)); see also Stone v. Louisiana Dep't of Revenue, 590 F.
App'x 332, 339 (5th Cir. 2014) (“Although [plaintiff] need not plead a prima facie case, she is
not exempt from her obligation to allege facts sufficient to state all the elements of her claim.”)
(emphasis in original, internal quotations and citations omitted). While the plaintiff only needs to
plead facts at this stage of litigation, “‘[t]he complaint must contain either direct allegations on
every material point necessary to sustain a recovery . . . or contain allegations from which an
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inference fairly may be drawn that evidence on these material points will be introduced at trial.’”
Kreit v. Corrado, No. CIV A H-05-0564, 2006 WL 2709239, at *1 (S.D. Tex. Sept. 20, 2006)
(quoting Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995)).
The elements of a prima facie case of intentional discrimination under a disparate
treatment theory are that Plaintiff “(1) is a member of a protected class . . . ; (2) was qualified for
the position; (3) was subjected to an adverse employment action . . . ; and (4) . . . shows that
other similarly situated employees [not in the plaintiff’s class] were treated more favorably.”
Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004). Defendant challenges Plaintiff’s
complaint based on the last two elements of a prima facie case for discrimination. According to
Defendant, none of Handy’s acts alleged by Plaintiff amount to an adverse employment action.
Doc. 5 at 3. Additionally, Defendant asserts that Plaintiff fails to “allege or identify any
similarly-situated TSU employees who were treated more favorably than he.” Id. at 4.
“Regarding the third prong of a prima facie case, an adverse employment action for Title
VII discrimination claims based on race, color, religion, sex, or national origin ‘include[s] only
ultimate employment decisions such as hiring, granting leave, discharging, promoting, or
compensating.’” Agoh, 992 F. Supp. 2d at 734 (citing Green v. Administrators of Tulane Educ.
Fund, 284 F.3d 642, 657 (5th Cir. 2002)). “Title VII was only designed to address ultimate
employment decisions, not to address every decision made by employers that arguably might
have some tangential effect upon those ultimate decision.” Burger v. Central Apartment Mgmt.,
Inc., 168 F.3d 875, 878 (5th Cir. 1999) (emphasis in original) (internal quotations and citations
omitted). “To be actionable, an adverse employment decision must be a ‘tangible employment
action that constitutes a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
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significant change in benefits.’” Agoh, 992 F. Supp. 2d at 735–36 (citing Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742, 764, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998)). “[A] decision made by
an employer that only limits an employee’s opportunities for promotion or lateral transfer does
not qualify as an adverse employment action under Title VII.” Jones v. FJC Security Services,
Inc., 40 F. Supp. 3d 840, 849 (S.D. Tex. 2014) (quoting Banks v. East Baton Rouge Parish
School Board, 320 F.3d 570, 575 (5th Cir. 1995)). “The same is true of negative performance
evaluations, even if they were not deserved.” Thompson v. Exxon Mobil Corp., 344 F. Supp. 2d
971, 981 (E.D. Tex. 2004) (citing Felton v. Polles, 315 F.3d 470, 487 (5th Cir. 2002) (abrogated
on other grounds in retaliation cases only by Burlington N. and Santa Fe Ry. v. White, 548 U.S.
53, 126 S. Ct. 2405, 165 L.Ed.2d 345 (2006)).
Plaintiff was neither fired nor demoted, and he does not contend that his job title,
responsibilities, and benefits were affected. Doc. 1 at 4–5. “Opposition to . . . Tymczak’s
professional advancement” does not amount to the ultimate employment decision of promotion
or demotion as contemplated by Title VII, particularly as Plaintiff has not alleged that Handy
was in a position to bring about a promotion or demotion. Id. at 4. The only action Plaintiff
identifies that could potentially constitute an adverse employment action is Handy’s alleged
“interference with [Plaintiff’s] faculty compensation, including improper reduction in pay.” Id. at
5. Therefore Plaintiff has made an allegation sufficient to allege the third element of a disparate
treatment claim. However, as described below, Plaintiff has failed to allege facts that satisfy the
fourth element, and has generally failed to allege that his alleged discriminatory treatment was
based on race.
“For the fourth prong, ‘similarly situated’ employees are employees [not in the protected
class] who are treated more favorably in ‘nearly identical’ circumstances; the Fifth Circuit
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defines ‘similarly situated’ narrowly.” Agoh, 992 F. Supp. 2d at 735 (citing Silva v. Chertoff, 512
F.Supp.2d 792, 803 n.33 (W.D. Tex. 2007)); see also Wheeler v. BL Dev. Corp., 415 F.3d 399,
405 (5th Cir. 2005) (Similarly situated individuals must be “nearly identical” and must fall
outside the plaintiff’s protected class.). In cases alleging that an employer disparately disciplined
a similarly situated employee based on his membership in a protected group, the employees
being compared must have reported to the same supervisor and been subjected to the same
standards governing conduct and discipline without any differentiating or mitigating
circumstances. See Lucas v. Kansas City Southern Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009);
Wheeler, 415 F.3d 399 at 406; Bryant v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir.
2005); Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001);
Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995).
Plaintiff has failed to allege that any similarly situated employee outside his protected
class was treated more favorably. In his Complaint, Plaintiff only identifies non-AfricanAmerican individuals who have allegedly suffered similar discriminatory treatment due to
actions taken by Handy. Doc. 1 at 5–6. Plaintiff’s burden was to identify non-Caucasian TSU
employees under nearly identical circumstances who were treated more favorably. Plaintiff failed
to do so. Id. Plaintiff contends that “[n]ecessarily implicit” in his factual statement is that
African-American individuals who were similarly situated were not treated in the same manner
as Plaintiff or the identified individuals. Doc. 6 at 3. An implication is not enough to constitute
either a direct allegation or an allegation from which an inference fairly may be drawn that
relevant evidence will be introduced at trial. Accordingly, Plaintiff failed to plead sufficient facts
that, if accepted as true, would allege an essential element of a prima facie case of
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Mindful of the fact that the McDonnell Douglas framework is not a “rigid pleading
requirement,” the Court also notes that Plaintiff has generally failed to plead facts giving rise to
the inference that the alleged discriminatory treatment of him was based on race, the “ultimate
question” in a disparate treatment claim. Raj v. Louisiana State Univ., 714 F.3d 322, 331 (5th
Cir. 2013) (“[T]he ‘ultimate question’ in a Title VII disparate treatment claim remains ‘whether a
defendant took the adverse employment action against a plaintiff because of her protected
status.’”) (citing Kanida v. Gulf Coast Med. Personnel LP, 363 F.3d 568, 576 (5th Cir. 2004)).
While Plaintiff does not need to present evidence of discrimination at this stage of litigation, he
does need to allege facts that link the alleged discrimination with his race. Id. Plaintiff makes
conclusory assertions that he was discriminated against based on his race, and presents the fact
that Plaintiff is Caucasian and Handy is African-American, but Plaintiff’s subjective belief that
he was discriminated against is not sufficient to state a claim under Title VII. Because Plaintiff
does not allege any facts that link the alleged discrimination with his race, he has not pled a
claim of race discrimination that raises his right to relief “above the speculative level.” Id. (citing
Bass v. Stryker Corp., 669 F.3d 501, 506 (5th Cir. 2012)). As such, Plaintiff’s complaint does not
state a claim to relief under a theory that is plausible on its face.
Accordingly, the Court hereby
ORDERS that Defendant’s Motion to Dismiss (Doc. 5) is GRANTED. The Court
ORDERS that Plaintiff’s discrimination claim under Title VII is DISMISSED without
prejudice. Plaintiff has 30 days from the date this order is served to amend his complaint.
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SIGNED at Houston, Texas, this 18th day of April, 2017.
UNITED STATES DISTRICT JUDGE
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