Olford v. City of Houston
Filing
12
MEMORANDUM OPINION granting in part, denying in part 7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 1 of 21
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MUNDO OLFORD,
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
CITY OF HOUSTON,
Defendant.
June 29, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-3421
MEMORANDUM OPINION
Pending before the court1 is Defendant City of Houston’s
(“Defendant”) Motion to Dismiss (Doc. 7). The court has considered
the motion, the response, all other relevant filings, and the
applicable law. For the reasons set forth below, the court GRANTS
IN PART AND DENIES IN PART Defendant’s motion to dismiss.
I.
Case Background
Plaintiff filed this suit against his former employer,
alleging that Defendant violated 42 U.S.C. § 1981 (“Section 1981”),
42 U.S.C. § 1983 (“Section 1983”), Title VII of the Civil Rights
Act of 19642 (“Title VII”), the Texas Commission on Human Rights
Act3 (“TCHRA”), and the Americans with Disabilities Act4 (“ADA”).
1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 11, Ord. Dated
Mar. 1, 2018.
2
42 U.S.C. §§ 2000e-2000e-17.
3
Tex. Lab. Code §§ 21.001-21.556.
4
42 U.S.C. § 12112.
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 2 of 21
Lastly, Plaintiff alleges a breach of contract claim.5
A.
Factual Background6
Plaintiff began working for the Houston Fire Department
(“HFD”) on August 19, 1991.7
1.
Lawsuit
In 2008, Plaintiff, along with six other African-American
firefighters, became involved in a disparate impact lawsuit
alleging that Defendant discriminated against African-American
firefighters in its civil service exams, thus, barring them from
promotions.8
By 2010, the lawsuit was settled, and Plaintiff was
awarded backpay and promoted to captain.9
As a result, Plaintiff
suffered insults from HFD co-workers.10 Specifically, Plaintiff was
accused of being promoted solely on the basis of the settlement
rather than on merit or seniority and was referred to as “paper
captain” and “one of the seven.”11
Fire
Chief
Terry
Garrison
(“Chief
Garrison”)
met
with
Plaintiff after the lawsuit, offered him congratulations, and told
5
See Doc. 2, Pl.’s Am. Compl. p. 2.
6
The following factual account is derived from Plaintiff’s amended
complaint.
7
See id. p. 3.
8
See id.
9
See id.
10
See id. p. 9.
11
Id.
2
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 3 of 21
Plaintiff to report any suspect behavior to him directly.12
Plaintiff followed through by telling Chief Garrison about the
“paper captain” comments, his right shoulder issues, and his
request to transfer back to dispatch.13
Plaintiff alleges that
Chief Garrison ignored his complaints.14
Members of the Houston Professional Fire Fighters Association
IAFF Local 341 held meetings regarding Plaintiff’s lawsuit.15
Executive Chief Richard Mann (“Executive Chief Mann”), who was
“second in command to Chief Garrison,” attended these meetings
where Plaintiff “was repeatedly identified as ‘one of the seven.’”16
2.
Injuries and Illness
On December 11, 2011, Plaintiff sustained injuries to his neck
and shoulders while on active duty.17
As a result, Plaintiff was
placed in a full-time transitional desk position at the dispatch
office the following year.18 After Plaintiff underwent surgery to
his neck and shoulders in November 2013, he was cleared for light
duties by his doctor and transferred to a transitional desk
12
See id. p. 16.
13
See id.
14
See id.
15
See id.
16
Id.
17
See id. p. 3.
18
See id.
3
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 4 of 21
position in the public affairs division.19 Although Plaintiff was
eager to return to his previous dispatch position, a move which was
supported by Chief Garrison, Executive Chief
Mann and City
Councilman Ed Gonzalez insisted he remain in the public affairs
division.20
In June 2015, Plaintiff was diagnosed with myeloid leukemia
which caused him to take a leave of absence.21
his transitional desk job in October 2015.22
Plaintiff resumed
Captain Ruy Lozano
approached Plaintiff’s superiors in an attempt to make the
transitional desk job a permanent position for Plaintiff; Chief
Garrison consented but Executive Chief Mann vetoed the idea.23
On February 3, 2016, Plaintiff attended a fitness-for-duty
meeting with HFD and informed the department that he was undergoing
cancer treatment.24
During this meeting, Plaintiff requested to
remain in his transitional desk position because the doctors
cleared him for sedentary work.25
HFD responded that the desk
position was temporary, and gave Plaintiff the option to either
retire or be reclassified as a civilian and HFD would conduct a job
19
See id. p. 4.
20
See id.
21
See id.
22
See id.
23
See id.
24
See id. p. 5.
25
See id. p. 6.
4
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 5 of 21
search for him.26
Plaintiff reluctantly chose medical separation
in order to be eligible for disability benefits which HFD was aware
he was pursuing at the time.27
In March 2016, upon the request of the Houston Firefighters’
Relief Retirement Fund, Dr. Jim Kelaher, M.D., (“Dr. Kelaher”)
conducted Plaintiff’s disability evaluation.28 While the evaluation
reported
his condition to be permanent and require regular
treatment,
Plaintiff
was
found
to
have
no
impairment
comprehension or mental abilities throughout the exam.29
of
The
evaluation concluded that the cancer was presumptively duty-related
because there was no indication otherwise.30
On March 14, 2016,
Plaintiff was medically separated from HFD.31
On April 14, 2016,
Plaintiff received treatment from Dr. Priya Ramshesh, M.D., (“Dr.
Ramshesh”) who agreed with Dr. Kelaher that Plaintiff was able to
maintain a desk position but could not perform strenuous physical
labor.32
In October 2016, six months after Plaintiff was medically
separated from employment, HFD posted a job advertisement to fill
26
See id. p. 5.
27
See id.
28
See id. p. 5.
29
See id.
30
See id.
31
See id. p. 3.
32
See id. p. 6.
5
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 6 of 21
his vacant desk position.33
While the posting called for a
firefighter, engineer, or operator, Plaintiff alleges that the
position required minimal physical activity as it was inherently a
“light
duty”
position.34
Coincidentally,
a
similar
job
advertisement was posted in November 2015 before Plaintiff was
diagnosed with cancer.35 At the time, Plaintiff was arguably secure
at his dispatch position and had no need to apply for the job.36
Plaintiff
alleges
that
he
knew
of
an
African-American
colleague, Margaret Roberts (“Roberts”), who suffered from a
chronic illness and was given additional assistance in filing for
Social Security and other benefits at her fitness for duty
meeting.37
Plaintiff attributes Ms. Robert’s favorable treatment
to her friendship with Assistant Chief Lisa Campbell.38 Moreover,
in his complaint, Plaintiff provides the names of five white HFD
firefighters who also allegedly received preferential treatment for
their disabilities through permanent desk job accommodations. 39
Plaintiff alleges that while his request for a desk position was
33
See id. p. 7.
34
Id.
35
See id.
36
See id.
37
See id. p. 8
38
See id.
39
See id. p. 9
6
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 7 of 21
denied, his white counterparts were reasonably accommodated.40
B.
Procedural Background
On March 28, 2016, Plaintiff filed a charge of discrimination
against the City of Houston with the Equal Employment Opportunity
Commission (“EEOC”).41 The EEOC issued a notice of right to sue on
August 10, 2017.42
On November 8, 2017, Plaintiff filed his
complaint, followed by an amended complaint on November 9, 2017,
with a jury demand.43 Defendant filed the pending motion to dismiss
for failure to state a claim on January 3, 2018.44
Plaintiff
responded to the motion on January 24, 2018.45
II.
Legal Standard
Rule 12(b)(6) allows dismissal of an action whenever the
complaint, on its face, fails to state a claim upon which relief
can be granted.
When considering a motion to dismiss, the court
should construe the allegations in the complaint favorably to the
pleader and accept as true all well-pleaded facts.
Harold H.
Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 803 n.44 (5th Cir.
2011)(quoting True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009)).
40
See id.
41
See Doc. 2, Pl.’s Am. Compl.
42
See id.
43
See Doc. 1, Pl.’s Compl.
44
See Doc. 7, Def. City of Houston’s Mot. to Dismiss.
45
See Doc. 2, Pl.’s Am. Compl.
7
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 8 of 21
A complaint need not contain “detailed factual allegations”
but must include sufficient facts to indicate the plausibility of
the claims asserted, raising the “right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plausibility means that the factual content “allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.”
provide “more than
Iqbal, 556 U.S. 678.
A plaintiff must
labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.”
U.S. at 555.
Twombly, 550
In other words, the factual allegations must allow
for an inference of “more than a sheer possibility that a defendant
has acted unlawfully.”
Iqbal, 556 U.S. 678.
III. Analysis
In reviewing Defendant’s motion to dismiss, the court will
consider Defendant’s challenges to the following claims: (1)
Section 1981; (2) Section 1983; (3) Title VII and TCHRA; and (4)
breach of contract.
A.
Section 1981
Defendant argues that Plaintiff cannot pursue a Section 1981
cause of action because Title VII is his exclusive remedy. Section
1981 provides that every person “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
8
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 9 of 21
laws and proceedings for the security of persons and property as is
enjoyed by white citizens...” 42 U.S.C. § 1981(a). “‘Section 1981
does
not
provide
discrimination,’
a
but
general
instead
cause
of
‘prohibits
action
for
race
intentional
race
discrimination with respect to certain enumerated activities.’”
Arguello v. Conoco, Inc., 330 F.3d 355, 358 (5th Cir. 2003).
The
rights
protected
by
Section
1981
are
limited
to
“impairment by nongovernmental discrimination and impairment under
color of state law.”
42 U.S.C. § 1981(c).
However, Section 1981
has been interpreted to only “impl[y] a cause of action against
private actors.” Oden v. Oktibbeha County, Mississippi, 246 F.3d
458, 463 (5th Cir. 2001).
In Oden, the Fifth Circuit held that a
plaintiff cannot pursue a separate cause of action under Section
1981 against a state actor, but may assert his Section 1981
substantive rights through Section 1983.
Id. at 464.
Plaintiff’s complaint alleges that Defendant is liable for
violating his Section 1981 rights through its discriminatory
employment practices via Section 1983. In Plaintiff’s response to
Defendant’s motion, he reiterates that the claims asserted under
Section 1981 are not independent from the Section 1983 cause of
action. Pursuant to Oden, Plaintiff may not bring a separate claim
under Section 1981. Therefore, Plaintiff may enforce his Section
1981 substantive rights within the scope of his Section 1983 claim
but may not maintain a separate cause of action under Section 1981.
9
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 10 of 21
B.
Section 1983
In order to prevail on a claim
under Section 1983,46 a
plaintiff must establish that the defendant deprived the plaintiff
of his constitutional rights while acting under the color of state
Moody v. Farrell, 868 F.3d 348, 351 (5th Cir. 2017).
law.
The
statute creates no substantive rights but only provides remedies
for deprivations of rights created under federal law.
Graham v.
Connor, 490 U.S. 386, 393-94 (1989).
1.
Exclusive Remedy
Defendant contends that Plaintiff cannot bring both a Title
VII and Section 1983 claim because Plaintiff’s remedy is limited to
Title VII. Courts have recognized that Title VII is the exclusive
remedy for violations of its own terms and carries specific
remedial provisions that cannot be circumvented. See, e.g., Grady
v. El Paso Cmty. Coll., 979 F.2d 1111, 1113 (5th Cir. 1992)(“[A]
violation of Title VII cannot support a 1983 suit.”); Irby v.
Sullivan, 737 F.2d 1418, 1428 (5th Cir. 1984) (“[T]he rights created
by section 704(a) [of Title VII] may not be asserted within the
remedial framework of Section 1983.”).
46
The provision reads, in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, o r usage, of any State . . . , subjects, or causes to be
subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983.
10
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 11 of 21
In support of its argument, Defendant relies on Jackson v.
City of Atlanta, 73 F.3d 60, 61 (5th Cir. 1996), which held that a
plaintiff cannot pursue a cause of action under both Section 1983
and Title VII from the same set of allegations without identifying
an additional constitutional or statutory right.
However, the
Fifth Circuit has held that the same facts can create claims under
both remedies when a separate constitutional right is asserted.
See Southard v. Tex. Bd. of Crim. Just., 114 F.3d 539, 549 (5th Cir.
1997)(“Title VII is the exclusive remedy for a violation of its own
terms. But when a public employer's conduct violates Title VII and
a separate constitutional or statutory right, the injured employee
may
pursue
a
remedy
under
§
1983
as
well
as
under
Title
VII.”)(quoting Johnston v. Harris Cty. Flood Control Dist., 869
F.2d 1565, 1573 (5 th Cir. 1989)).
In this case, Plaintiff is claiming an equal protection
violation as a predicate
to liability under Section 1983.
Plaintiff pleads that Defendant’s “historical discrimination”
towards African-American employees is the underlying constitutional
violation.47 In response to Defendant’s motion, Plaintiff cites to
the following facts in his complaint to support an equal protection
violation: the disparate impact lawsuit, preferential treatment
toward white firefighters, racial animosity exhibited by Executive
Chief Mann, the job advertisement for the desk position after
47
Doc. 8, Pl.’s Resp. to Def. City of Houston’s Mot. to Dismiss p. 5.
11
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 12 of 21
Plaintiff’s termination, and the insulting nicknames such as “paper
captain” and “one of the seven.”48 The court therefore finds that
Plaintiff has alleged enough to maintain a separate cause of action
under Section 1983.49
2.
Municipal Liability
Defendant also challenges Plaintiff’s Section 1983 claim on
the basis that Plaintiff has failed to allege a city policy or
custom.
A city may be held liable under Section 1983 only for its own
illegal acts, not pursuant to a theory of vicarious liability.
Connick v. Thompson, 563 U.S. 51, 60 (2011). To succeed on a claim
under Section 1983, the plaintiff must demonstrate that the city
“had some inadequate custom or policy that acted as the moving
force behind a constitutional violation.” Forgan v. Howard Cty.,
Tex., 494 F.3d 518, 522 (5th Cir. 2007)(citing Monell v. Dep’t of
Soc. Servs. of N.Y., 436 U.S. 658, 690-91 (1978)); see also
Connick, 131 S. Ct. at 1359. Official municipal policy “includes
the decisions of a government’s lawmakers, the acts of its
48
Id. pp. 5-6.
49
Additionally, in Defendant’s motion to dismiss, Defendant asserts
that Plaintiff cannot maintain a “Section 1983 . . . disability discrimination
claim” because his only remedy exists under Title VII. The ADA is Plaintiff’s
remedy for disability discrimination, not Title VII; and, the court finds that
Plaintiff may maintain both a Section 1983 claim and a disability discrimination
claim under the ADA in the same action.
See, e.g., Sullivan v. City of Round
Rock, No. A-14-CV-349-AWA, 2 0 1 7 W L 4001572, at **2-3 (W.D. Tex. Sept. 11,
2017)(slip op.)(“an ADA claim may not be brought pursuant to § 1983”); Rideau v.
Keller Indep. Sch. Dist., 978 F. Supp.2d 678, 682-684 (N.D. Tex. 2013)(asserting
both an ADA and Section 1983 claim).
12
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 13 of 21
policymaking officials, and practices so persistent and widespread
as to practically have the force of law.” Peña v. City of Rio
Grande, 879 F.3d 613, 621–22 (5th Cir. 2018)(quoting Connick, 563
U.S. at 61).
However, this court has found that at the motion to dismiss
stage, a plaintiff “need not specifically state what the policy is
. . . but may be more general.”
Thomas v. City of Galveston, 800
F. Supp. 2d 826, 843 (S.D. Tex. 2011).
A plaintiff must still
“provide fair notice to the defendant, and this requires more than
generically restating the elements of municipal liability.” Id.
Such allegations could include “past incidents of misconduct to
others, multiple harms that occurred to the plaintiff, misconduct
that occurred in the open, the involvement of multiple officials in
the misconduct, or the specific topic of the challenged policy.”
Id.; see also Hicks-Fields v. Harris Cty., 860 F.3d 803, 808 (5th
Cir.
2017)(holding
discriminatory
that
custom
if
a
city
the
can
only
policymaker
be
was
liable
for
actually
a
or
constructively aware of the practice).
Plaintiff alleges that there was a custom or policy of racial
discrimination in promotions and job accommodations towards black
firefighters; Plaintiff also alleges a custom of disability
discrimination.50
Plaintiff states in his complaint:
Chief Richard Mann and Fire Chief Terry Garrison were
50
See Doc. 2, Pl.’s Am. Compl. p. 16.
13
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 14 of 21
official policy makers for the Houston Fire Department.
Moreover, Mann and Garrison were the top two employees in
terms of rank in the HFD at all relevant times . . .
Here, Garrison and Mann actually knew of the retaliatory
and discriminatory behavior towards [Plaintiff], they
knew he was excellent at his job, Garrison knew
[Plaintiff] was being denied light duty positions
unreasonably, Mann was actually denying reasonable
requests by [Plaintiff], and they knew Defendant was
forcing medical separation onto [Plaintiff], yet they did
nothing.51
Defendant contends that the complaints does not show that Executive
Chief Mann and Chief Garrison were responsible for final city
policy.
Additionally,
Defendant
asserts
that
Plaintiff’s
allegations do not support a policy of discrimination, citing the
following facts: (1) Chief Garrison congratulated Plaintiff on the
promotion; (2) Plaintiff was given some job accommodations by HFD;
and (3) one of the comparators he identifies is also AfricanAmerican.
While Plaintiff does not allege that Chief Garrison and
Executive Chief Mann are final policymakers whose decisions are
“administratively unreviewable,” he argues that final policymakers
were nevertheless bound by Chief Garrison and Executive Chief
Mann’s
custom
of
discrimination
discriminatory practices at HFD.
through
knowledge
of
the
See Gelin v. Hous. Auth. of New
Orleans, 456 F.3d 525, 528 (5th Cir. 2006); see also Brady v. Fort
Bend County, 145 F.3d 691, 700(5th Cir. 1998)(holding that a final
policymaker’s exercise of discretion was “unreviewable by any other
51
Id. p. 17.
14
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 15 of 21
official or governmental body in the county”).
In support,
Plaintiff points to the city council’s constructive knowledge of
the custom of racial discrimination practices in HFD, through the
earlier lawsuit settlement that alleged disparate impact to
African-Americans.
Also, Plaintiff has identified five white
comparators in his complaint who received more favorable treatment
and job accommodations he did not receive. Looking to Plaintiff’s
complaint, the court finds that he alleges enough to survive at the
motion to dismiss stage.
D.
Title VII and TCHRA
Plaintiff alleges claims for racial discrimination under Title
VII and the TCHRA.
In interpreting the TCHRA, Texas courts “look
to analogous federal precedent for guidance.” Rodriguez v. ConAgra
Grocery Prods. Co., 436 F.3d 468, 473-74 (5th Cir. 2006)(quoting NME
Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999)).
Therefore, the court will analyze Plaintiffs’ TCHRA and Title VII
claims together.
1.
Discrimination
Title VII prohibits employers from “discriminat[ing] against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's race,
color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).
In the absence of direct evidence, as is the case here, courts
analyze discrimination and retaliation claims under the burden-
15
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 16 of 21
shifting approach first articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) [hereinafter McDonnell Douglas], and
modified in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), and
Rachid v. Jack In The Box, Inc., 376 F.3d 305 (5th Cir. 2004).
Under this “modified McDonnell Douglas approach,” a plaintiff may
trigger a presumption of discrimination by establishing a prima
facie case.
Rachid, 376 F.3d at 312.
A prima facie case of race discrimination requires the
plaintiff to show that he: (1) is a member of a protected class;
(2) was qualified for his position; (3) suffered an adverse
employment action; and (4) was replaced by someone who is not a
member of the protected classes to which the plaintiff belongs or
was treated less favorably than similarly situated employees of a
different race or religion.
See Okoye v. Univ. of Tex. Houston
Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).
In the
Fifth Circuit, “[a]dverse employment actions include only ultimate
employment decisions such as hiring, granting leave, discharging,
promoting, or compensating.” McCoy v. City of Shreveport, 492 F.3d
551, 559 (5th Cir. 2007).
The court also notes that proof of
disparate treatment can establish the fourth element of the
plaintiff’s prima facie case.
See Bryant v. Compass Group USA
Inc., 413 F.3d 471, 478 (5th Cir. 2005), cert. denied, 413 U.S. 471
(2006); Okoye, 245 F.3d at 513.
“To raise an inference of
discrimination, the plaintiff may compare his treatment to that of
16
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 17 of 21
nearly identical, similarly situated individuals.”
Bryant, 413
F.3d at 478.
Plaintiff has sufficiently pled the first three elements: (1)
he is an African American; (2) he is qualified for the position as
demonstrated by his extensive experience and accolades; and (3) he
was rejected for the desk position despite his qualifications.
Defendant challenges the fourth element by pointing to a similarly
situated African-American woman in Plaintiff’s complaint, Roberts,
who was treated more favorably by being granted reasonable
accommodations.
In an effort to satisfy the fourth element, Plaintiff cites
the following facts to support his discrimination claim: (1) the
disparate impact lawsuit; (2) treatment and accommodation of
firefighters who were not African-American; (3) Executive Chief
Richard Mann’s treatment towards
him; (4) City of Houston’s
advertisements for “light-duty” jobs after denying Plaintiff the
same employment; (5) HFD employees referring to him as “paper
captain” and “one of the seven;” and (6) Chief Garrison’s denial of
Plaintiff’s requests.52
Moreover, Plaintiff alleges that Roberts
was given preferential treatment as her reward for not pursuing
legal action against Defendant and her friendship with Assistant
Chief Campbell.
With respect to the fourth element, the court
notes that Plaintiff has pled sufficient facts to survive a motion
52
Doc. 8, Pl.’s Resp. to Def. City of Houston’s Mot. to Dismiss p. 7-8.
17
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 18 of 21
to dismiss.
2.
Retaliation Claim
Defendant contends that Plaintiff has not pled the causation
element of a prima facie case of retaliation.
When reviewing
Title VII retaliation claims, a similar
McDonnell Douglas framework used for discrimination claims is also
applied. The prima facie elements of a retaliation claim are: “(1)
the employee engaged in an activity protected under Title VII; (2)
the employer took adverse employment action against the employee;
and (3) a causal connection exists between the protected activity
and the adverse employment action.” Fisher v. Lufkin Indus. Inc.,
847 F.3d 752, 757 (5th Cir. 2017).
The protected activity must be
a “but-for” cause of the alleged adverse action to establish a
retaliation claim.
Univ. of Texas Sw. Med. Ctr. v. Nassar, 570
U.S. 338, 362 (2013).
While courts have allowed plaintiffs to rely on close timing
to provide a causal connection, it is not necessarily determinative
of retaliation. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086,
1092 (5th Cir. 1995).
Plaintiffs may also introduce additional
evidence to satisfy the causation element.
See Zamora v. City Of
Houston, 798 F.3d 326, 335 (5th Cir. 2015) (“Our inquiry here,
however,
is
not
whether
temporal
proximity
alone
shows
causation—Zamora has produced other evidence of causation...”).
Defendant moves for dismissal on the grounds that Plaintiff
18
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 19 of 21
fails to plead but-for causation between his protected activity,
the settlement, and the alleged adverse employment actions.
Specifically, Defendant asserts that
the timing between the
settlement and the adverse employment action is too remote to prove
but-for causation.53
In support of a causal connection, Plaintiff links the namecalling (“one of the seven”) and disparaging remarks (“paper
captain”) to the protected activity. Plaintiff contends that these
remarks by HFD employees are causally related to the settlement
which sufficiently motivated Plaintiff’s supervisors to forcefully
terminate his employment.
Additionally, Plaintiff asserts that
other employees were given accommodations that Plaintiff was
denied.
The court acknowledges that the timing between Plaintiff’s
protected activities and the alleged adverse employment actions is
not enough on its own to establish a causal link for purposes of a
retaliation claim. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
268, 273-74 (citing cases holding that three- and four-month
periods between protected activity and an adverse employment action
were insufficient to establish a causal connection).
Plaintiff
does
not
rely
exclusively
on
close
However,
timing.
The
contributing factors discussed above are sufficiently pled to show
a causal connection between his protected activity and the adverse
53
Doc. 7, Def.’s Mot. to Dismiss p. 9.
19
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 20 of 21
employment action to survive a motion to dismiss.
F.
Breach of Contract
Defendant asserts that, as a governmental entity, it is immune
from a breach of contract claim.
Governmental immunity protects
public entities from suit and liability.54
See Smith v. Houston
Indep. Sch. Dist., 229 F. Supp. 3d 571, 576 (S.D. Tex. 2017)(slip
op.)(citing Tooke v. City of Mexia, 197 S.W.3d 325, 331 n.11 (Tex.
2006)). Texas Local Government Code § 271.152 waives this immunity
for breach of contract claims.
However, “[Texas Local Government
Code] § 271.156 explicitly exempts suits in federal court from that
waiver.”
Id.; see also Tex. Local Gov’t Code § 271.156 (“This
subchapter does not waive sovereign immunity to suit in federal
court.”).
The Texas Local Government Code makes it clear that immunity
is not waived for breach of contract claims in federal court.
Additionally, there is no allegation in Plaintiff’s complaint that
Defendant has consented to waiving its immunity in this case.
54
In his motion, Plaintiff cites Wasson I n t e r e sts, Ltd. v. City of
Jacksonville, 489 S.W.3d 427 (Tex. 2016) and contends that the settlement
contract in this case falls under a proprietary function of the municipality, not
a governmental function.
Per the Te x a s C i v il Practice and Remedies Code §
101.0215(b), a proprietary function is defined as:
(1) the operation and maintenance of a public utility;
(2) amusements owned and operated by the municipality; and
(3) any activity that is abnormally dangerous or ultrahazardous.
The settlement agreement in this case clearly does not fall under one of those
categories. Plaintiff does not explain how it is a proprietary function, instead
merely makes conclusory statements that it involves a proprietary function and
that Defendant executed the settlement ag r e e m e n t in the interests of the
taxpayers.
The court finds that the settlement agreeme n t was related to
governmental function (a)(1) as it involves the fire department. See Tex. Local
Gov’t Code 271.152(a)(1).
20
Case 4:17-cv-03421 Document 12 Filed in TXSD on 06/29/18 Page 21 of 21
Plaintiff’s breach of contract claim should be dismissed.
IV.
Conclusion
Based on the foregoing, the court GRANTS IN PART AND DENIES IN
PART Defendant’s motion to dismiss.
Plaintiff’s claims under
Section 1983, Title VII, the TCHRA, and the ADA survive.
SIGNED in Houston, Texas, this 29th day of June, 2018.
______________________________
U.S. MAGISTRATE JUDGE
21
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