Carr v. Humble Independent School District

Filing 19

ORDER granting 13 Amended MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . (Signed by Judge Vanessa D Gilmore) Parties notified.(gclair, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROBIN CARR,
Plaintiff,

v.
HUMBLE INDEPENDENT SCHOOL
DISTRICT,
Defendant.

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February 23, 2018
David J. Bradley, Clerk

CASE NO. 4:17-CV-0773

ORDER
Pending before the Court is Defendant's First Amended Motion to Dismiss. (Instrument No. 13).

I.

A.
This is an employment discrimination action brought by Plaintiff Robin Carr ("Carr" or
"Plaintiff') against her former employer, Defendant Humble Independent School District ("HISD" or
"Defendant"). (Instrument No. 12). Plaintiff brings claims of sex discrimination, hostile work
environment, and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) and the
Texas Labor Code, as well claims under Title IX of the Civil Rights Act, 42 U.S.C. §§ 1981 and
1983, and the common law tort of invasion of privacy. !d. Defendant moves to dismiss Plaintiffs
claims of discrimination under Title VII and the Texas Labor Code as well as Plaintiffs claims under
Title IX, 42 U.S.C. §§ 1981 and 1983, and the common law tort of invasion of privacy. (Instrument
No. 13). Defendant does not seek to dismiss Plaintiffs claims for hostile work environment and
retaliation under Title VII and the Texas Labor Code. See id. at 10. ("The District is not conceding or
admitting that it or any of its employees actually engaged in sexual harassment or retaliation of any

kind, but believes that enough facts have been pled in the First Amended Complaint so as to make
those claims unsuitable for dismissal under Rule 12(b)( 6)").

B.
Plaintiff is a black lesbian woman who was employed full time as an at-will probationary
police officer in the HISD police department. (Instrument No. 12 at 5). Plaintiff began her
employment in June 2014 and resigned in February 2015 due to an alleged constructive discharge.
Id. at 5 and 12.

Plaintiffs supervisor at HISD was Sergeant Bobby Brown ("Brown"). Id. at 5. According to
Plaintiff, Brown displayed hostility towards her from the first day they met. Id. Because Plaintiff
"dressed, spoke, and acted in a manner that was not as feminine as other women," she was told that
she "looked gay." Id. Brown also spoke with Plaintiff about other women's "breasts" and "asses,"
because he believed that she would share his interest in such comments. Id. at 6. But according to
Plaintiff, these comments simply "created an atmosphere where sexual harassment and
discrimination in the workplace [were] prevalent." Id.
Plaintiff claims that Brown delayed her training because he did not approve of her sexual
orientation and conformity to sex stereotypes. Id. at 9. Despite starting work at HISD in June 2014,
she was not able to attend a training class until September 2014. Id. at 8. Whereas other officers were
allowed to use HISD vehicles during training, Plaintiff had to use her own personal car. Id. Plaintiff
also asked to take off work when her mother was diagnosed with terminal pancreatic cancer, but she
was only permitted to leave work early a couple of times. Id. at 7.
Plaintiff also alleges that her co-workers discriminated against her on the basis of her sexual
orientation and gender conformity. Id. at 9. Another female officer gave her the "silent treatment"
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when Plaintiff was assigned to ride with her on patrol. !d. Plaintiffs training officer asked her
sexually explicit questions and discussed his own "sexual conquests and sexual prospects daily." !d.
Plaintiff complained about these comments to HISD Human Resources but "her complaints were
ignored by the District." !d.
Before working at HISD, Plaintiff had never visited Humble and was unfamiliar with the
area. !d. at 10. Because of this unfamiliarity, Plaintiff alleges that Brown "ridiculed, harassed, and
cursed" her for getting lost and making wrong turns. !d. Brown also assigned Plaintiff to work nights
even though "no other female officer worked nights." !d.
Plaintiff alleges that Brown placed her life in danger by assigning her to drive an old patrol
car with an outdated inspection sticker, a bad battery, and no seatbelt. !d. Plaintiff was so appalled by
the car that she complained to the federal Occupational Safety and Health Administration. !d. at 11.
When she told Brown about her complaints, he laughed and said, "If you want to be a man you need
to learn how to jump a battery." !d. Meanwhile, when Plaintiff sprained her ankle and asked to be
assigned to light duty, Brown made her maintain the same assignments. !d. at 12.
On February 11, 2015, Plaintiff was contacted by Lieutenant Stanford at HISD and told that
Chief Cook, the head of the department, wanted her to "resign or quit." !d. Plaintiff then took her
resignation to Human Resources and wrote on it that she was "forced to resign not of my own free
will." !d.

c.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission and Texas Workforce Commission within 180 days of the alleged discrimination.
(Instrument No. 12 at 4-5). Within 90 days of receiving a right to sue letter, Plaintiff filed this
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original action on February 10, 2017 in the 295th Judicial District Court of Harris County, Texas.
(Instrument No.1). The case was then removed to this Court on March 10, 2017.Jd.
On June 6, 2017, Defendant filed a motion to dismiss for failure to state a claim. (Instrument
No.9). During the scheduling conference on June 16,2017, the Court gave Plaintiffleave to amend
her complaint and denied the motion to dismiss as moot. See (Instrument No. 11). On June 30,2017,
Plaintiff filed the First Amended Complaint. (Instrument No. 12) (hereinafter, "Complaint"). On July
14,2017, Defendant renewed and amended its motion to dismiss. (Instrument No. 13). Plaintiff filed
a response on August 4, 2017. (Instrument No. 14).
II.

Under Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain "a short and
plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
The complaint need not contain "detailed factual allegations," but it must include "more than an
unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A pleading that offers a formulaic recitation of the elements of a cause of action will not
suffice. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Likewise, a complaint that
articulates "naked assertions devoid of further factual enhancement" is similarly insufficient to
satisfy the pleading requirements of Rule 8.lqbal, 556 U.S. at 678.
When a complaint does not meet the pleading requirements of Rule 8, Rule 12(b)( 6)
authorizes dismissal of a civil action for "failure to state a claim upon which relief can be granted."
Fed. R. Civ. P. 12(h)(2)(B). To survive a motion to dismiss, the complaint must articulate "the
plaintiffs 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. Sullivan, 503 F.3d 397, 401 (5th

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Cir. 2007). Stated otherwise, in order to withstand a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); Turner v. Pleasant, 663 F.3d 770,775 (5th Cir.
2011 ). A claim for relief is plausible on its face "when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Iqbal, 556 U.S. at 678. A claim for relief is implausible on its face when "the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct." Iqbal, 556 U.S. at 678.
This "plausibility standard is not akin to a probability requirement, but asks for more than a sheer
possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (internal quotations
omitted).
Under this rubric, dismissal is proper only if the plaintiffs complaint: ( 1) does not include a
cognizable legal theory, Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), or (2) includes
a cognizable legal theory but fails to plead enough facts to state a claim for relief that is plausible on
its face, Turner, 663 F.3d at 775. Ultimately, the question for a court to decide is whether the
complaint states a valid claim when viewed in the light most favorable to the plaintiff. Shandong

Yinguang Chern. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1032 (5th Cir. 2010).

III.
Plaintiff brings claims of sex discrimination, hostile work environment, and retaliation under
Title VII and the Texas Labor Code, the common law tort of invasion of privacy, and claims under
Title IX, 42 U.S.C. § 1981 and 42 U.S.C. § 1983. Id. Defendant moves to dismiss all causes of
action except those for hostile work environment and retaliation under Title VII and the Texas Labor
Code. See (Instrument No. 13 at 10) ("This Motion does not address Plaintiffs claims for hostile
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environment sexual harassment, or retaliation").

A.
Defendant asserts that Plaintiffs claim under 42 U.S.C. § 1983 should be dismissed because
Plaintiff has not alleged the existence of an official policy or custom that was the moving force
behind any constitutional injuries, which is required to hold a school district accountable under §
1983. See (Instrument No. 13 at 12); see also Monellv. City ofNew York, 436 U.S. 658,694 (1978).
In response, Plaintiff asserts that she identified three other incidents of sexual harassment in her
department and that she was pressured to resign by the chief of HISD police, who had final
policymaking authority. (Instrument No. 14 at 10).
Under Monell, local governments may be held liable for constitutional violations if they have
a policy or practice that causes those violations. 436 U.S. at 694. When a plaintiff alleges hostile
work environment without identifying an official policy, the practices of the municipality must be
"so permanent and well settled as to constitute a 'custom or usage' with the force of law." See
Bennett v.

City of Slidell,

728 F.2d 762,

767 (5th Cir.

1984). "Allegations of

an isolated incident[ s] are not sufficient to show the existence of a custom or policy." Fraire v. City
ofArlington, 957 F.2d 1268, 1278 (5th Cir. 1992). "Isolated violations are not the persistent, often

repeated, constant violations that constitute custom and policy." Bennett, 728 F.2d at 768 n.3.
Here, Plaintiff identifies three other incidents that she claims created a culture of sexual
harassment. First,"[ s]uspicions abounded[ ed] about the inappropriate personal relationship between
Sgt. Brown and another female subordinate." (Instrument No. 12 at 6). Second, another female
officer accused Sgt. Brown of sending her nude pictures. !d. Third, someone in the department
lodged a sexual harassment complaint against Plaintiffs training officer, who also bragged to
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Plaintiff about his sexual exploits. !d. at 6 and 9.
Although these episodes are indicative of the toxic work environments facing countless
women across the country, they do not arise to the level of"permanent and well settled" custom that
is necessary under Monell. See Bennett, 728 F.2d at 767. Importantly, none of these episodes was
similar to the alleged harassment that Plaintiff experienced. The allegations that "suspicions
abound[ed]" about Plaintiffs supervisor having a relationship with another officer and that
Plaintiffs training officer had been accused of sexual harassment are too vague and conclusory to
show a pattern or practice. See (Instrument No. 12 at 6). Meanwhile, the fact that one employee
received nude pictures does not reflect a persistent or repeated violation amounting to custom or
policy. See id.
Plaintiff also alleges that she was subject to a discriminatory policy when the chief ofHISD
police, Chief Cook, encouraged her to resign through Lieutenant Stanford, and when her complaints
to Human Resources went unanswered. !d. at 12. According to Plaintiff, the actions of the police
chief and director of human resources were official county policy. (Instrument No. 14 at 10).
"[W]hether a particular official has final policymaking authority is a question of state

law." Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). Under Texas law, district school
boards have "the exclusive power and duty to govern and oversee the management of the public
schools of the district." Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003)
(quoting Tex. Educ. Code. § 11.151(b)); see also Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1245
(5th Cir. 1993) ("Texas law is clear that final policymaking authority in an independent school
district, such as the DISD, rests with the district's board oftrustees.").

In Jett, the Fifth Circuit determined that a school district superintendent does not have final
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policymaking authority under Texas law because the Texas Education Code places sole
policymaking authority with the board of trustees. See 7 F.3d at 1246. Plaintiff attempts to
distinguish Jett by arguing that "nowhere does it claim that only the trustees are responsible for all
policy." (Instrument No. 14 at 10-11). However, Plaintiff does not offer any authority or case law to
dispute Jett's central holding that "[n]othing in the Texas Education Code purports to give the
Superintendent any policymaking authority or the power to make rules or regulations." 7 F.3d at
1245. Nor does Plaintiff offer any authority to show that the HISD school board delegates final
decision-making authority to the police chief or director of human resources. See (Instrument No.
14). Accordingly, these individuals are not final policymakers under Texas law, but Plaintiff may
still address their conduct through her retaliation claim under Title VII and the Texas Labor Code.
Because Plaintiff has not identified a final policymaker or custom that was the moving
force behind her constitutional violations, her claims under 42 U.S.C. § 1983 are DISMISSED.

B.
Plaintiff claims that Defendant invaded her privacy by allowing its employees to ask her
"highly offensive" questions about her sexuality. (Instrument No. 12 at 27 -28). Plaintiff also asserts
that Defendant "publicized facts regarding Plaintiffs private life which were not oflegitimate public
concern," without stating when or how such facts were published. !d. at 28.
Defendant moves to dismiss Plaintiffs claim of invasion of privacy on the basis that Texas
school districts are immune from most common law tort claims. (Instrument No. 13 at 15); see Tex.
Civ. Prac. & Rem. Code§ 101.051 (stating that school districts in Texas are immune from common
law torts except those involving motor vehicles); see also Barr v. Bernhard, 562 S.W.2d 844, 846
{Tex. 1978) ("The law is well settled in this state that an independent school district is an agency of
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the state and, while exercising governmental functions, is not answerable for its negligence in a suit
sounding in tort.").
In response, Plaintiff does not address Defendant's argument or discuss her invasion of
privacy claim. See Local Rule 7.4 ("Failure to respond will be taken as a representation of no
opposition"). Accordingly, Plaintiffs claim for invasion of privacy is DISMISSED.

c.
Defendant seeks to dismiss Plaintiffs discrimination claims under the Texas Labor Code and
Title VII for failure to state a claim. (Instrument No. 13 at 19). Because employment discrimination
claims under Chapter 21 of the Texas Labor Code (formerly known as the Texas Commission on
Human Rights Act) mirror Title VII, these claims may be analyzed together. See Reed v. Neopost

USA, Inc., 701 F.3d 434, 439 (5th Cir. 2012); see also Mission Canso!. Indep. Sch. Dist. v.
Garcia, 372 S.W.3d 629, 633-34 (Tex. 2012) ("Because one of the purposes of the TCHRA is to
'provide for the execution of the policies of Title VII of the Civil Rights Act of 1964,' we have
consistently held that those analogous federal statutes and the cases interpreting them guide our
reading of the TCHRA").
To establish a prima facie case of sex discrimination, an employee must demonstrate that
(1) she is a member of a protected class, (2) she was qualified for the position at issue, (3) she was

the subject of an adverse employment action, and (4) she was treated less favorably because of her
membership in that protected class than were other similarly situated employees who were not
members of the protected class. Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
Once an employee has made out a prima facie case, "an inference of intentional discrimination is
raised and the burden of production shifts to the employer, who must offer an alternative non9

discriminatory explanation for the adverse employment action." !d. If the employer can provide a
legitimate nondiscriminatory explanation, the inference of discrimination drops out and the burden
shifts back to the employee to demonstrate that the employer's explanation is merely a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973).
Plaintiff and Defendant both devote significant portions of their arguments to whether
discrimination on the basis of sexual orientation is actionable under Title VII. See (Instruments No.
13 at 14). Although the Fifth Circuit has previously held that"[ d]ischarge for homosexuality is not
prohibited by Title VII," Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), the law in this
area has recently evolved. Since Blum was decided, the Supreme Court recognized that Title VII
prohibits discrimination on the basis of gender and sex stereotyping. Price Waterhouse v. Hopkins,
490 U.S. 228, 258 (1989). Based on sex stereotyping, the Equal Employment Opportunity
Commission determined in 2015 that "sexual orientation is inherently a 'sex-based consideration,'
and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex
discrimination under Title VII." Complainant v. Anthony Foxx, EEOC DOC 0120133080,2015 WL
4397641, at *5 (July 16, 2015). Last year, the Seventh Circuit embraced this logic and held that "a
person who alleges that she experienced employment discrimination on the basis of her sexual
orientation has put forth a case of sex discrimination for Title VII purposes." Hively v. Ivy Tech
Cmty. Col/. ofIndiana, 853 F.3d 339,351-52 (7th Cir. 2017) (en bane). The Second Circuit is also

currently considering this argument en bane. See Zarda v. Altitude Express, 855 F.3d 76, 82 (2d Cir.
2017), reh 'g en bane granted (May 25, 2017).
Here, the Court need not determine whether discrimination on the basis of sexual orientation
constitutes sex discrimination under Title VII because Plaintiff fails to state a prima facie case of sex
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discrimination and Defendant does not seek dismissal of Plaintiffs claims of retaliation and hostile
work environment.
For the discrimination claim, Defendant does not dispute that Plaintiff is a member of a
protected class, is qualified for her position, and that her alleged constructive discharge constitutes an
adverse employment action. See (Instrument No. 13 at 19). However, Defendant seeks to dismiss this
claim on the basis that Plaintiff does not allege that she was treated less favorably because of her
membership in a protected class than other similarly situated employees who were not members of
the protected class. /d.
In stating a claim for discrimination, a plaintiff cannot rely on a general pleading that she was
treated less favorably than other similarly situated employees outside of the protected class. See
Wallace v. Methodist Hasp. Sys., 271 F.3d 212, 221 (5th Cir. 2001); see also Smith v. Wal-Mart
Stores (No. 471)., 891 F.2d 1177, 1180 (5th Cir. 1990)(noting that a plaintiff must demonstrate "that
the misconduct for which she was discharged was nearly identical to that engaged in by a[n]
employee [not within her protected class] whom [the company] retained.").
Here, Plaintiff has not identified any comparators to whom she was treated less favorably.
The details of Plaintiffs constructive discharge are scant, and there are no allegations that the
discharge was based on Plaintiffs sex or sexual orientation. See (Instrument No. 12 at 12). The
Complaint simply states that Plaintiff was "contacted via telephone by Lt. Stanford and told that per
Chief Cook that she needed to 'resign or quit."' /d. However, Plaintiff has not identified any other
employee to whom she was treated less favorably because of her membership in a protected class.
Accordingly, Plaintiffs discrimination claims under Title VII and the Texas Labor Code are
DISMISSED.

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D.
Plaintiff also brings claims under Title IX of the Civil Rights Act because she worked for a
school district that receives federal funding. (Instrument No. 12 at 23). Defendant seeks to dismiss
these claims on the basis that Title VII provides the exclusive federal remedy for employment
discrimination, even in the context of educational institutions. (Instrument No. 13 at 23).
In Lakoski v. James, the Fifth Circuit held that "Title VII provides the exclusive remedy for
individuals alleging employment discrimination on the basis of sex in federally funded educational
institutions." 66 F.3d 751,753 (5th Cir. 1995). Even when an employee works for a school district,
"Title VII occupies center stage" because recognizing employment-related causes of action under
Title IX would "disrupt a carefully balanced remedial scheme for redressing employment
discrimination." !d. at 754.
Plaintiff devotes several pages of her response to explaining why Lakoski was wrongly
decided but does not cite any case in which a plaintiff has brought both Title VII and Title IX claims
for the same conduct. Plaintiff also does not cite any authority in which Title IX has been invoked to
address employment discrimination. Rather, Title VII seems to be the exclusive federal remedy for
individuals alleging employment discrimination, as the Fifth Circuit recognized in Lakoski. 66 F.3d
at 753. Accordingly, Plaintiff's claims under Title IX are DISMISSED.

E.
Plaintiff also brings claims under42 U.S.C. § 1981 for discrimination on the basis of sex, sex
stereotyping, and sexual orientation. (Instrument No. 12 at 26). Defendant moves to dismiss these
claims by asserting that § 1981 only applies to race and has never been extended to sex or sex
discrimination. (Instrument No. 13 at 24). Section 1981 states:
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All persons within the jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no
other.
42 U.S.C. § 1981. Courts have repeatedly held that§ 1981 only applies to race. See Alizadeh v.
Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir. 1986) ("§ 1981 proscribes only racial
discrimination"); see also Evans v. City ofHouston, 246 F.3d 344, 356 n.9 (5th Cir. 2001) ("§ 1981
prohibits only racial discrimination.").
In response to Defendant's motion to dismiss, Plaintiff does not address her claims under§
1981. See (Instrument No. 14). Because Plaintiffs§ 1981 claims in the Complaint are based only on
sex, sex stereotyping, and sexual orientation, Plaintiffs claims under§ 1981 are DISMISSED.

F.
Defendant seeks to dismiss Plaintiffs claims for punitive and exemplary damages because
these remedies are unavailable against governmental entities under Title VII. (Instrument No. 13 at
26); see Oden v. Oktibbeha County, Miss., 246 F.3d 458, 465-66 (5th Cir. 2001) ("The Act [Title
VII] precludes plaintiffs from recovering punitive damages against governments, government
agencies, and political subdivisions."). In response, Plaintiff does not address Defendant's motion to
dismiss punitive and exemplary damages. See (Instrument No. 14). Accordingly, Plaintiffs claim for
punitive and exemplary damages is DISMISSED.

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IV.
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss
is GRANTED. (Instrument No. 13). Plaintiffs claims of 42 U.S.C. § 1983, invasion of privacy,
discrimination under Title VII and the Texas Labor Code, Title IX, 42 U.S.C. § 1981, and exemplary
damages are DISMISSED with prejudice.
The Clerk shall enter this Orfier and provide a copy to all parties.

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SIGNED on this th{/fl_ day of February, 2018 at

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ouston,

as.