De Valentino v. Houston Independent School District

Filing 9

MEMORANDUM AND ORDER the Motion for Partial Dismissal Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) [Doc. # 3] is GRANTED in part. The Court DISMISSES with prejudice the following claims: defamation (including libel and slander ); intentional infliction of emotional distress; negligence; gross negligence; negligent hiring, supervision, and retention; violation of the Texas Whistleblower Act; and hostile work environment. Plaintiffs claims that she was terminated from her e mployment based on race discrimination or retaliation remain pending. It is furtherORDERED that this case remains set for an initial pretrial conference on May 14, 2018, at 1:00 p.m. in Courtroom 9F (9th floor) of the United States Courthouse, 515 Rusk Street, Houston, TX 77002.(Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
§
v.
§
§
HOUSTON INDEPENDENT SCHOOL §
DISTRICT,
§
Defendant.
§

April 12, 2018
David J. Bradley, Clerk

JESSICA DE VALENTINO,
Plaintiff,

CIVIL ACTION NO. H-18-0393

MEMORANDUM AND ORDER
Plaintiff Jessica de Valentino proceeds pro se in this suit against Defendant
Houston Independent School District (“HISD”). She alleges illegal discrimination
and retaliation, among other claims. Defendant has filed a “Motion for Partial
Dismissal Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)”
[Doc. # 3]. Plaintiff filed a Response [Doc. # 6], Defendant filed a Reply [Doc.
# 7], and Plaintiff filed a Surreply [Doc. # 8].

The Motion now is ripe for

consideration. Having considered the parties’ submissions, all matters of record,
and applicable legal authorities, the Court determines that the Motion should be
granted in part.
I.

BACKGROUND
Plaintiff’s pleadings [Doc. # 1] (“Complaint”) state that she brings this suit

for employment discrimination under Title VII based on her race (African
American) and color (black). Complaint, at 1.

She also brings tort claims and

claims of retaliation and hostile work environment. Plaintiff worked for HISD for
over fifteen years as an educator.

She alleges that, after she returned from

maternity leave on April 6, 2016, she was subject to “disparate treatment” by her
new manager, Diana Bidulescu. Id. at 2, ¶ 13. In particular, she alleges that
Bidulescu engaged in a personal attack on Plaintiff’s “pregnancy related time-off
doctor’s appointments, maternity leave, and parenting style.” Id..
Plaintiff alleges that in April and May 2016, Bidulescu “wrote a series of
libelous[] memorandum” and emails about Plaintiff and her work, “slandered the
Plaintiff [at a conference] citing the . . . false claim of changing assignments and
lack of professionalism,” and “would often enlist other managers and supervisors
to harass and falsify records in attempt to injure Plaintiff.” Id. ¶¶ 14-15, 19.
Plaintiff supplies a memorandum from Bidulescu to Plaintiff, dated May 4, 2016,
stating that Plaintiff failed to comply with HISD policy, guidelines for professional
conduct, and her employment responsibilities. See Exhibit 4 to Complaint.

She

also provides a memorandum from Bidulescu dated May 9, 2016, which details
Bidulescu’s concerns that Plaintiff was not completing her assigned tasks and was
revising the assignments without receiving necessary approval. See Exhibit 6 to

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Complaint. The May 9 memorandum warned Plaintiff of disciplinary action for
failure to comply with its detailed performance directives.1
Plaintiff alleges that the statements in the May 9 memorandum are false.
Complaint, at 2, ¶ 18. She also alleges that an email sent by Bidulescu on May 9,
which instructed Plaintiff to resolve open “tickets” or tasks, was “libelous” because
“in fact the Plaintiff was not able to see the tickets because [another employee] had
purposefully placed them in area the Plaintiff did not have access to.” Id. at 2-3,
¶ 19; see Exhibit 5 to Complaint.
Plaintiff also has provided a memorandum from Bidulescu to Plaintiff dated
May 12, 2016, with the subject line “FAILURE TO COMPLY WITH
PROFESSIONAL CONDUCT DIRECTIVE.”

See Exhibit 7 to Complaint.

Plaintiff alleges that this memorandum also was “libelous” and “falsified.”
Complaint, at 3, ¶ 20.
Plaintiff’s Complaint alleges that Bidulescu and others acted to harass and
make false statements about her in the subsequent months.

She states that, on

May 4, 2016, she filed a “Work Place Bullying Complaint form.” Id. at 2, ¶ 17.
This document does not appear to be in the record before the Court. In September
1

The May 9 memorandum gave Plaintiff four specific performance directives:
complete tasks in the time allotted; respond to “tickets” within 24 hours and resolve them
promptly; do not reassign collaborative tasks to other members of her team; and, respond
to written communications within 24 hours, providing complete thoughts and avoiding
one-word responses. See Exhibit 6 to Complaint.
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2016 Plaintiff “in good faith” reported Bidulescu to the “HISD Hotline” for alleged
“theft of state and federal funds through fraudulent time reporting.” Id. at 3, ¶ 29.
On September 27, 2016, Plaintiff was discharged. Plaintiff alleges that
Bidulescu replaced Plaintiff with a Caucasian employee. Id. ¶¶ 30-31. Plaintiff
states that she grieved the discharge through several levels of the grievance
process, but the “level three grievance” was “never held.” Id. ¶ 33.
At some point, Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”).

Neither party provides the

Court with the date of Plaintiff’s charge. Plaintiff has submitted her Right to Sue
Letter dated November 16, 2017. See Exhibit 1 to Complaint.
II.

RULE 12 STANDARDS
A.

Rule 12(b)(1)

“A case is properly dismissed for lack of subject matter jurisdiction when
the court lacks the statutory or constitutional power to adjudicate the case.” Smith
v. Regional Transit Auth., 756 F.3d 340, 347 (5th Cir. 2014) (internal citation and
quotation marks omitted).

“In considering a challenge to subject matter

jurisdiction, the district court is free to weigh the evidence and resolve factual
disputes in order to satisfy itself that it has the power to hear the case.” Id.
(internal citation and quotation marks omitted). When the court’s subject matter
jurisdiction is challenged, the party asserting jurisdiction bears the burden of
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establishing it. See Alabama-Coushatta Tribe of Tex. v. U.S., 757 F.3d 484, 487
(5th Cir. 2014). A motion to dismiss for lack of subject matter jurisdiction should
be granted only if it appears certain that the plaintiff cannot prove a plausible set of
facts that establish subject matter jurisdiction. Venable v. La. Workers’ Comp.
Corp., 740 F.3d 937, 941 (5th Cir. 2013). “Under Rule 12(b)(1), the court may
find a plausible set of facts by considering any of the following: (1) the complaint
alone; (2) the complaint supplemented by the undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.” In re Mirant Corp, 675 F.3d 530, 533 (5th Cir. 2012)
(internal citation, alteration, and quotation marks omitted). The Court must take
the well-pled factual allegations of the complaint as true and view them in the light
most favorable to the plaintiff. Id.
B.

Rule 12(b)(6)

Traditionally, courts view with disfavor a motion to dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). Turner v. Pleasant,
663 F.3d 770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas.
Co., 563 F.3d 141, 147 (5th Cir. 2009)); Lormand v. US Unwired, Inc., 565 F.3d
228, 232 (5th Cir. 2009); Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559,
570 (5th Cir. 2005).

The Supreme Court has explained that in considering a

motion to dismiss under Rule 12(b)(6), a complaint must be liberally construed in
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favor of the plaintiff and all well-pleaded facts taken as true. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007); Harrington, 563 F.3d at
147.

However, “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555). The complaint must contain “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.
(quoting Twombly, 550 U.S. at 570); Patrick v. Wal-Mart, Inc., 681 F.3d 614, 617
(5th Cir. 2012). When there are well-pleaded factual allegations, a court should
presume they are true, even if doubtful, and then determine whether they plausibly
give rise to a claim to relief. Iqbal, 556 U.S. at 679. This determination of
plausibility is a context-specific task that requires the court to draw on its judicial
experience and common sense. Id.
In considering a motion to dismiss, a court ordinarily must limit itself to the
contents of the pleadings and attachments thereto. Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing FED. R. CIV. P. 12(b)(6)).
Documents “that a defendant attaches to a motion to dismiss are [also] considered
part of the pleadings if they are referred to in the plaintiff’s complaint and are
central to her claim.” Id. at 498-99 (quoting Venture Assocs. Corp. v. Zenith Data
Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)); see Kane Enters. v. MacGregor
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(USA), Inc., 322 F.3d 371, 374 (5th Cir. 2003). “In so attaching, the defendant
merely assists the plaintiff in establishing the basis of the suit, and the court in
making the elementary determination of whether a claim has been stated.” Collins,
224 F.3d at 499. These presumably are documents whose authenticity no party
questions. See Walch v. Adjutant General’s Dep’t of Tex., 533 F.3d 289, 294 (5th
Cir. 2008) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1357 (3d ed. 2004)).
A document filed by a pro se party must be “liberally construed” and “a pro
se complaint, however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94 (internal
quotation marks and citations omitted). See FED. R. CIV. P. 8(e) (“Pleadings must
be construed so as to do justice”).
III.

ANALYSIS
Plaintiff’s Complaint brings a claim for race discrimination. Complaint, at

1, ¶ 1; id. at 4, ¶ 38.

She also alleges claims against HISD for hostile work

environment, id. at 4-5, ¶¶ 42-44; defamation by libel and slander, id. at 5, ¶¶ 4548; retaliatory discharge, id. ¶¶ 49-50; retaliation under the Texas Whistleblower
Act, id. at 6, ¶¶ 51-52; intentional infliction of emotional distress, id. ¶¶ 53-55;
negligent hiring, supervision, training and retention regarding Bidulescu, id. ¶¶ 5657; negligence, id. at 6-7, ¶¶ 58-63; and gross negligence, id. at 7, ¶¶ 64-65. She
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seeks compensatory damages, including back pay, future wages, and past and
future pain and suffering. She also seeks exemplary damages.
Defendants’ Motion seeks dismissal of all of Plaintiff’s claims other than
race discrimination.
A.

HISD’s Immunity from Tort Claims

Plaintiff brings multiple tort claims against HISD, some alleging intentional
torts and some alleging negligence. HISD seeks dismissal of all of Plaintiff’s tort
claims under Rule 12(b)(1) based on HISD’s governmental immunity.
Governmental units such as HISD are immune from suit and liability absent
a waiver of immunity. The Texas Tort Claims Act (“TTCA”) creates a limited
waiver of sovereign immunity for governmental units in Texas. Goodman v.
Harris County, 571 F.3d 388, 394 (5th Cir. 2009); Smith v. Houston Indep. Sch.
Dist., 229 F. Supp. 3d 571, 576 (S.D. Tex. 2017) (Rosenthal, J.).

The

“governmental units” covered by the TTCA include school districts, which are a
political subdivision of the State. Smith, 229 F. Supp. 3d at 576 (citing Tooke v.
City of Mexia, 197 S.W.3d 325, 331 n.11 (Tex. 2006)).
The TTCA is not a waiver of governmental immunity for intentional torts.
TEX. CIV. PRAC. & REM. CODE § 101.057(2) (“This chapter does not apply to a
claim . . . arising out of assault, battery, false imprisonment, or any other
intentional tort”). See Travis v. City of Grand Prairie, Texas, 654 F. App’x 161,
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166–67 (5th Cir. 2016). However, the TTCA does waive governmental immunity
for lawsuits claiming “property damage, personal injury, or death aris[ing] from
the operation or use of a motor-drive vehicle or motor-driven equipment” if the
governmental employee would be personally liable to the claimant under Texas
law, and for personal injury and death in certain circumstances. TEX. CIV. PRAC. &
REM. CODE § 101.021. School districts are given special treatment and are liable
only for tort claims involving the use or operation of motor vehicles. TEX. CIV.
PRAC. & REM. CODE § 101.051 (“Except as to motor vehicles, this chapter does not
apply to a school district”). See Mission Consol. Indep. Sch. Dist. v. Garcia, 253
S.W.3d 653, 656 (Tex. 2008).
In response to HISD’s assertion of governmental immunity, Plaintiff
“alleges a waiver of immunity withstanding HISD’s liability insurance affording
coverage to this action.” Response, at 3 (citing Anderson v. Town of Andrews, 492
S.E.2d 385 (N.C. App. 1997)). The case cited by Plaintiff is not relevant to the
issues before the Court and, moreover, relies on North Carolina law. This Court
must construe and apply the TTCA.
Plaintiff does not allege any tort involving a motor vehicle. Because the
TTCA does not waive HISD’s government immunity for any of the tort claims
Plaintiff alleges, her tort claims must be dismissed. See Travis, 654 F. App’x at
167 (dismissing state law claims of defamation and intentional infliction of
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emotional distress); Umoren v. Plano Indep. Sch. Dist., 457 F. App’x 422, 425 (5th
Cir. 2012) (dismissing negligence-based claims because TTCA waives liability for
school districts only for claims involving the use or operation of a motor vehicle).
HISD is immune from Plaintiff’s claims for defamation by libel and slander;
intentional infliction of emotional distress; negligent hiring, supervision, training
and retention regarding Bidulescu; negligence; and, gross negligence. This Court
lacks subject matter jurisdiction over the claims, and they are dismissed under Rule
12(b)(1).
B.

Retaliation under Texas Whistleblower Act

Plaintiff brings a claim under the Texas Public Whistleblower Act, codified
at Texas Government Code § 554.002(a). This claim requires Plaintiff to plead
and prove three elements: (1) a good faith report of a violation of law; (2) that the
report was made to an appropriate law enforcement authority; and (3) a suspension
or termination of employment, or other adverse personnel action, as a result of the
report. Serna v. City of San Antonio, 244 F.3d 479, 482 (5th Cir. 2001).
Plaintiff’s Complaint makes only a cursory allegation that the Whistleblower
Act was violated, referencing “all facts and circumstances” alleged elsewhere in
her Complaint. Complaint, at 6, ¶¶ 51-52. One paragraph of her Complaint
alleges that in September 2016, “in good faith, [Plaintiff] reported Diana
Bidulescu’s theft of state and federal funds through fraudulent time reporting to the
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HISD Hotline.” Id. at 3, ¶ 29. The Court construes this allegation as the factual
basis of her Whistleblower Act claim. HISD seeks dismissal of Plaintiff claim
because, among other issues, Plaintiff has not pleaded any facts alleging that she
made a report to an “appropriate law enforcement authority.”
“The Whistleblower Act requires a claimant to show that he in ‘good faith’
reported a violation of law to an ‘appropriate law enforcement authority.’” Univ. of
Houston v. Barth, 403 S.W.3d 851, 857 (Tex. 2013) (citing TEX. GOV’T
CODE § 554.002; Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 321 (Tex.
2002)).
[F]or an entity to constitute an appropriate law-enforcement authority
under the [Whistleblower] Act, it must have authority to enforce,
investigate, or prosecute violations of law against third parties outside
of the entity itself, or it must have authority to promulgate regulations
governing the conduct of such third parties.
Univ. of Texas Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 686 (Tex.
2013) (emphasis added). “Authority of the entity to enforce legal requirements or
regulate conduct within the entity itself is insufficient to confer law-enforcement
authority status” under the Act.

Id. (noting that “holding otherwise would

transform every governmental entity that is subject to any regulation or that
conducts internal investigations or imposes internal discipline into lawenforcement authorities under the Act”). In the context of Whistleblower Act
claims against school districts, the Supreme Court of Texas has held that
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complaints to school district officials did not suffice as complaints to a “law
enforcement authority” under the Act. Canutillo Indep. Sch. Dist. v. Farran, 409
S.W.3d 653, 655 (Tex. 2013) (employee reports of alleged theft, falsification of
time cards, and other issues to superintendent, assistant superintendent, internal
auditor, and school board were insufficient); see Connally v. Dallas Indep. Sch.
Dist., 506 S.W.3d 767 (Ct. App.–El Paso, 2016) (school district police department
was appropriate law enforcement agency to which employee could report alleged
criminal law violations).
Plaintiff’s Response argues that the HISD Hotline was an “appropriate law
enforcement authority” under Section 554.002(b) because “HISD has its own
police force and has the ability to work in tandem with the local law enforcement
to take corrective actions,” the HISD Hotline “requested the reporting of waste,
fraud, and abuse,” and because her call to the Hotline “was answered, recorded,
and can be verified during Discovery.”

Response, at 3.

This argument is

foreclosed by controlling legal authorities. See, e.g., Canutillo, 409 S.W.3d 655.
Plaintiff does not allege that she made any report other than to call the
Hotline. Because a report to an “appropriate law enforcement authority” is an
essential element of a claim under the Whistleblower Act, see Barth, 403 S.W.3d
at 857; Gentilello, 398 S.W.3d at 686, Defendant’s motion to dismiss the claim is
granted.
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C.

Hostile Work Environment

Plaintiff brings a claim for a hostile work environment based on her race
(African-American) and color (black).

HISD moves to dismiss the claim under

Twombly and Iqbal, arguing that her Complaint merely recites elements of the
claim and does not allege specific facts. In her Surreply, Plaintiff alleges that she
has suffered migraines, high blood pressure, lack of sleep, depression, and severe
anger because Bidulescu subjected her to “daily” and “hourly” intimidation,
harassment, and abuse. Surreply, at 1-2.
Plaintiff pleaded her claim under Chapter 21 of the Texas Labor Code, for
which Texas courts apply federal Title VII standards. See Waffle House, Inc. v.
Williams, 313 S.W.3d 796, 805-06 (Tex. 2010). To establish a claim of hostile
work environment under Title VII, Plaintiff must prove that she:
(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) (citing
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). A plaintiff must show
that the harassment is “sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.” Id. (internal
citation and quotation marks omitted).
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Workplace conduct is not measured in isolation. In order to deem a
work environment sufficiently hostile, all of the circumstances must
be taken into consideration. This includes 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. To
be actionable, the work environment must be both objectively and
subjectively offensive, one that a reasonable person would find hostile
or abusive, and one that the victim in fact did perceive to be so.
Id. (internal citations and quotation marks omitted); see Faragher v. City of Boca
Raton, 524 U.S. 775 (1998).
Plaintiff makes a conclusory statement that Bidulescu harassed her “based
on her protected class of color, black, and race, African-American.” Response, at
4.

Neither her Response nor her Surreply provide any facts supporting an

allegation that she was harassed based on her race or color. In her Complaint, she
alleges that Bidulescu replaced Plaintiff with a Caucasian employee after Plaintiff
was terminated, but makes no allegation that Bidulescu’s alleged actions towards
Plaintiff were based on Plaintiff’s race. In fact, her Complaint alleges that she was
“subject to a hostile work environment . . . for reporting discrimination.”
Complaint, at 4, ¶ 42.
This Court presumes that all well-pleaded factual allegations are true, even if
doubtful, and then must decide whether the pleaded facts, accepted as true, state a
plausible claim for relief. See Iqbal, 556 U.S. at 678-79. Plaintiff has not alleged
any specific facts that suggest that the alleged harassment against her was “based
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on race.”

Defendant’s motion to dismiss Plaintiff’s claim for hostile work

environment is granted.
D.

Retaliation under Texas Labor Code

Plaintiff brings a claim for retaliation under Chapter 21 of the Texas Labor
Code, alleging that she suffered an adverse employment action because she
complained about discrimination. Complaint, at 5, ¶¶ 49-50. She alleges in her
briefing that the alleged retaliation was motivated by her “protected activity of
filing an EEOC charge.” Response, at 4.
Texas jurisprudence for Chapter 21 claims generally parallels federal case
law construing Title VII’s anti-retaliation provisions. Alamo Heights Indep. Sch.
Dist. v. Clark, 2018 WL 1692367, at *16-17 (Tex. April 6, 2018); Prairie View
A&M Univ. v. Chatha, 381 S.W.3d 500, 504-05 (Tex. 2012); City of Waco v.
Lopez, 259 S.W.3d 147, 151 (Tex. 2008). Under Title VII, an employer may not
retaliate against an employee who brings a charge of discrimination. Retaliation
claims, like discrimination claims, are decided under the McDonnell Douglas
burden-shifting framework. To establish a prima facie case of unlawful retaliation,
a plaintiff must show that: (1) the plaintiff participated in an activity protected by
Title VII; (2) the employer took an adverse employment action against the
plaintiff; and (3) a causal connection exists between the protected activity and the
adverse action. Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir.
15

2008) (citing McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007)). If
the plaintiff establishes a prima facie case, the employer must articulate a
legitimate, nondiscriminatory reason for its employment actions.

Once the

employer does so, the burden shifts back to the plaintiff to establish that the
employer’s stated reason is a pretext for actual retaliatory purpose. Under federal
Title VII standards, Plaintiff’s ultimate burden is to show that her position would
not have been eliminated “but for” her engagement in protected activity. Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 351-52 (2013). The Texas Supreme
Court recently stated that it has yet to determine the appropriate causation standard
for a Chapter 21 retaliation claim. Clark, 2018 WL 1692367, at *17.
HISD concedes that Plaintiff has pleaded the first two elements of her prima
facie case, but argues that she is judicially precluded from showing the third
element, i.e., a causal connection. In particular, HISD argues that the Complaint
negates “but for” causation because Plaintiff pleads that she was terminated
because of her race and because she reported alleged wrongdoing to the HISD
Hotline. A finding that these allegations are true would defeat a showing that
Plaintiff would not have been terminated “but for” her EEOC charge, which is her
ultimate burden under federal standards. Nassar, 570 U.S. at 351-52.
In her Surreply, Plaintiff argues that “if she had not been discriminated
against she would not have been discharged,” and that she filed “grievances on
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April 6, 2016” and “EEOC reports” and “thereafter” was discharged. Surreply, at
2. The date of Plaintiff’s EEOC charge, which could be dispositive of Plaintiff’s
retaliation claim, is not apparent from the current record.
Plaintiff’s factual allegations pertaining to her retaliation claim are sparse.
However, this case is at an early stage, and Plaintiff is proceeding pro se.
Moreover, the causation standard in Texas for Chapter 21 retaliation claims has not
been squarely established.

Plaintiff’s burden at the prima facie stage is less

onerous “and can be satisfied merely by proving close timing between the
protected activity and the adverse action.” Clark, 2018 WL 1692367, at *17. The
Court thus declines to dismiss Plaintiff’s retaliation claim on the current record.
Plaintiff is advised that her retaliation claim will be dismissed at the summary
judgment stage if she does not provide competent evidence that her EEOC charge
caused her termination.
HISD’s motion to dismiss the retaliation claim is denied.
IV.

CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the Motion for Partial Dismissal Pursuant to Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6) [Doc. # 3] is GRANTED in part. The
Court DISMISSES with prejudice the following claims: defamation (including
libel and slander); intentional infliction of emotional distress; negligence; gross
17

negligence; negligent hiring, supervision, and retention; violation of the Texas
Whistleblower Act; and hostile work environment. Plaintiff’s claims that she was
terminated from her employment based on race discrimination or retaliation remain
pending. It is further
ORDERED that this case remains set for an initial pretrial conference on
May 14, 2018, at 1:00 p.m. in Courtroom 9F (9th floor) of the United States
Courthouse, 515 Rusk Street, Houston, TX 77002.
SIGNED at Houston, Texas, this 12th day of April, 2018.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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