Pena v. Houston Community College
Filing
17
MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)
United States District Court
Southern District of Texas
ENTERED
February 13, 2019
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROSE PENA,
Plaintiff,
v.
HOUSTON COMMUNITY
COLLEGE,
Defendant.
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§
§
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§
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David J. Bradley, Clerk
CIVIL ACTION NO. 4:18-01888
MEMORANDUM AND ORDER
Before the Court in this employment discrimination case is Defendant’s
Motion to Dismiss Plaintiff’s First Amended Original Complaint Pursuant to
Federal Rule of Civil Procedure 12(b)(6) (“Motion to Dismiss” or “Motion”) [Doc.
# 13]. Plaintiff has filed a response.1 Defendant has not filed a reply, its time to do
so has expired, see Hon. Nancy F. Atlas, Court Procedures and Forms, R.7(A)(4),
and the Motion is now ripe for decision. Having reviewed the parties’ briefing,
relevant matters of record, and pertinent legal authorities, the Court grants in part
and denies in part Defendant’s Motion to Dismiss.
1
Plaintiff’s Response to Defendant’s Motion to Dismiss Plaintiff’s First Amended
Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Response”)
[Doc. # 16].
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I.
BACKGROUND
As this case comes to the Court on a Rule 12(b)(6) motion to dismiss, the
facts set forth below are drawn from Plaintiff Rose Pena’s First Amended Original
Complaint (“Amended Complaint”) [Doc. # 12].
Pena is a 62-year-old woman of “Hispanic (Mexican) national origin” who
“is not African American.” She has worked for Defendant Houston Community
College (“HCC”), for over 34 years. HCC is a public community college and a
Texas governmental entity.
In 2015, Melissa Gonzalez, the Chief of Staff for HCC’s Chancellor, asked
Pena if she would consider becoming the Manager of Board Services as the
previous Manager, Sharon Wright, was leaving HCC. At the time of the request,
Pena’s job title was “Campus Administrator, Northwest.” Pena was told HCC
“really wanted her” in that position and that HCC believed she was qualified. Pena
accepted the position as Manager of HCC’s Board Services and she was hired for
the position in October 2015.
HCC failed to provide Pena with training or guidance for her new position.
Pena requested specific and detailed training from Gonzalez, to no avail. After
Gonzalez denied Pena’s request for training, Pena repeatedly requested a transfer
to her previous position as Campus Administrator, which had not been filled. Pena
was told that HCC was not permitting transfers, an assertion Pena contends is false
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because several employees had been transferred in responses to complaints against
HCC’s Vice Chancellor. Pena’s previous position remained unfilled until March
or April 2016.
In March 2016, HCC rehired Sharon Wright. HCC placed Wright, who is
African American in a newly created position as “Director of Board Services” and
assigned her the “bulk” of Wright’s former and Pena’s current job duties as
“Manager of Board Services.” Pena asserts that she was replaced by Wright
despite the latter’s different job title.
Wright’s annual salary was $105,000
($20,000 greater than Pena’s salary). As a result of Wright’s hiring, Pena alleges,
she lost “almost all” of her job duties and was left with only menial tasks. Pena
was also excluded from high level meetings. HCC transferred Pena’s office to a
storage closet, which was generally accessible to, and frequented by, HCC
employees.
Pena also alleges that Wright treated Reatha Bell, another HCC employee
who is African American, more favorably than Pena with respect to workplace
policies. Bell was allegedly permitted to come in when she wished, have her sister
come in for an hour to have conversations, conduct personal business on her HCC
computer, engage in personal printing with HCC equipment, and online shop. In
contrast, Pena was allegedly told not to talk to non-employees during work hours,
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asked “how long she was going to be”2 and told not to submit a request for time off
because it was allegedly too early to submit.
Pena alleges she complained that her treatment was discriminatory “up to six
times” to HCC managers. She complained to Tom Anderson at Human Resources
and David Cross “at the EEOC office.” In response to her complaints, Wright,
Gonzalez, and Anderson told Pena “on many occasions” that they thought she
should retire.
Wright made comments about Pena retiring “at least twice,”
Gonzalez made a comment about Pena retiring “at least once,” and Anderson told
Pena that HCC thought Pena “would just retire when . . . Wright came back.”
Pena attempted to transfer to a different job within HCC, applying for
positions as “Advisor,” “Senior Advisor,” “Assistant Dean, “Advisor in
Education,” “Campus Manager,” and “Program Director in P-16.” Pena asserts
she previously performed the duties associated with these jobs and “was the best
qualified.” Pena did not receive an interview for Program Director in P-16. Pena
alleges that HCC “failed to place a Hispanic, of any descent, let alone Mexican
heritage in any of these positions.”
In early 2017, Pena filed an EEOC “Charge of Discrimination.” In response,
HCC “failed to take any action or change [its] treatment of [Pena].”
2
Pena’s Amended Complaint does not clarify what this comment refers to.
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In August 2017, HCC awarded Pena the position as “Campus Manager at the
Southeast location.” This job allegedly paid less3 and required a longer commute.
Pena requested higher compensation and was told that HCC was not able to
increase her salary.
Pena alleges that when one of her African American
coworkers gave two weeks’ notice of his quitting, HCC increased his salary by relabeling his position as “Senior” without changing his duties.
In October 2018, HCC informed Pena that HCC was eliminating all five of
the Campus Manager positions at the Southeast location. Pena was informed that
she could apply for an open campus manager position.4
Meanwhile, in June 2018, Pena sued HCC, alleging a variety of causes of
action. Pena alleged discrimination, hostile-work environment, and retaliation on
account of her race, national origin, and age under Title VII and Age
Discrimination in Employment Act (“ADEA”). She further alleged discrimination
on account of her race and national origin under 42 U.S.C. § 1981 via § 1983.
On August 14, 2018, HHC moved to dismiss all Pena’s claims. See Doc.
# 6. At a scheduling conference held on October 9, 2018, the Court orally granted
3
It is unclear whether the job paid less relative to Pena’s position as Manger of
HCC’s Board Services or as Campus Administrator, Northwest.
4
Pena does not allege that she has actually been fired or is no longer working for
HCC.
5
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HCC’s motion and dismissed Pena’s claims without prejudice.
See Hearing
Minutes and Order [Doc. # 10] dated October 9, 2018. The Court granted Pena
leave to amend her complaint to fix the pleading defects identified in HCC’s
motion to dismiss.
On November 19, 2018, Pena filed her First Amended Original Complaint
[Doc. # 12].
Pena dropped her hostile work environment claim and alleges
discrimination and retaliation on account of her race, national origin, and age under
Title VII, ADEA, and § 1981.
On December 3, 2018, HCC filed its Motion to Dismiss [Doc. # 13], seeking
dismissal of all Pena’s claims.
II.
LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is
viewed with disfavor and is rarely granted. 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)). The complaint must be liberally construed in favor of the
plaintiff, and all facts pleaded in the complaint must be taken as true. Harrington,
563 F.3d at 147.
The complaint must, however, contain sufficient factual
allegations, as opposed to legal conclusions, to state a claim for relief that is
“plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Patrick v.
Wal-Mart, Inc., 681 F.3d 614, 617 (5th Cir. 2012).
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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 an
entitlement to relief. Iqbal, 556 U.S. at 679. Rule 8 “generally requires only a
plausible ‘short and plain’ statement of the plaintiff’s claim, not an exposition of
his legal argument.” Skinner v. Switzer, 562 U.S. 521, 530 (2011). Additionally,
regardless of how well-pleaded the factual allegations may be, they must
demonstrate that the plaintiff is entitled to relief under a valid legal theory. See
Neitzke v. Williams, 490 U.S. 319, 327 (1989); McCormick v. Stalder, 105 F.3d
1059, 1061 (5th Cir. 1997).
III.
DISCUSSION
Pena alleges discrimination and retaliation on account of her race, national
origin, and age under Title VII, ADEA, and 28 U.S.C. § 1981. HCC moves to
dismiss all Pena’s claims. The Court dismisses with prejudice Pena’s § 1981
claim and her two retaliation claims. The Court will not dismiss Pena’s Title VII
and ADEA discrimination claims.
A.
Section 1981
1.
Legal Standard for Section 1981 Claims
“Section 1981 ensures that all persons in the United States have the same
right to make and enforce contracts and prevents impairment of those rights by
government and non-government actors.” Meyers v. La Porte Indep. Sch. Dist.,
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277 F. App’x 333, 335 (5th Cir. 2007). While § 1981 “provides an independent
cause of action when a plaintiff is suing a private actor,” a “plaintiff alleging racial
discrimination against a state actor must assert that claim under § 1983.” See
Vouchides v. Hous. Cmty. Coll. Sys., No. CIV.A. H-10-2559, 2011 WL 4592057,
at *7 (S.D. Tex. Sept. 30, 2011). It is undisputed that HCC is a state actor. Pena
must therefore assert a cause of action under § 1983.
Section 1983 does not impose respondeat superior liability. See Piotrowski
v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). Instead, Pena’s § 1983
cause of action HCC must rely on a theory of municipal liability. “To establish
municipal liability under § 1983, a plaintiff must show that (1) an official policy
(2) promulgated by the municipal policymaker (3) was the moving force behind
the violation of a constitutional right.” Peterson v. City of Fort Worth, 588 F.3d
838, 847 (5th Cir. 2009).
“[T]he unconstitutional conduct must be directly
attributable to the municipality through some sort of official action or imprimatur;
isolated unconstitutional actions by municipal employees will almost never trigger
liability.” Piotrowski, 237 F.3d at 578 (footnote omitted). It is “necessary to
distinguish individual violations perpetrated by local government employees from
those that can be fairly identified as actions of the government itself.” See id.
“The description of a policy or custom and its relationship to the underlying
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constitutional violation, moreover, cannot be conclusory; it must contain specific
facts.” See Spiller v. City of Texas City, 130 F.3d 162, 167 (5th Cir. 1997).
2.
Pena’s § 1981 Claim Will Be Dismissed
Pena describes HCC’s official policy in her Amended Complaint as follows:
Defendant’s actions of favoring African Americans in Plaintiff’s
department was a continuing violation as part of a continuing system
of discriminatory practices in that department that was part of a
widespread practice (including bringing Sharon Wright back for a
position without a job description at a $20,000 increase) of
discrimination that constituted a custom representing Defendant’s
actual policy.
Amended Complaint [Doc. # 12], ¶ 5.37. Pena also alleges various discrete acts of
favoritism by HCC personnel towards African American employees.
See id.
¶¶ 5.18, 5.29.
Pena’s allegations do not sufficiently plead municipal liability for two
reasons. First, the policy or custom Pena describes—favoring African Americans
in “a continuing system of discriminatory practices in the department that was part
of a widespread practice . . . of discrimination—is conclusory and insufficiently
specific. See Spiller, 130 F.3d at 167 (affirming a Rule 12(b)(6) dismissal of a
§ 1983 claim for deficient allegations of municipal liability when the defendants’
alleged policy was “engag[ing] in conduct toward African American citizens
without regard to probable cause to arrest”). Second, the alleged instances of
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favoritism towards African Americans do not suffice as a policy, as isolated acts of
employees do not establish municipal liability. See Piotrowski, 237 F.3d at 578.
Pena’s § 1981 claim is dismissed with prejudice for failure to allege
municipal liability, an essential element of her claim.
B.
Title VII and ADEA Retaliation
1.
Legal Standards for Title VII and ADEA Retaliation
Claims
The elements of a retaliation claim under Title VII and the ADEA are:
(1) the plaintiff engaged in a protected activity; (2) the plaintiff suffered an adverse
employment action; and (3) a causal link exists between the protected activity and
the adverse employment action. See Wheat v. Fla. Par. Juvenile Justice Comm’n,
811 F.3d 702, 705 (5th Cir. 2016) (Title VII); Holtzclaw v. DSC Commc’ns Corp.,
255 F.3d 254, 259 (5th Cir. 2001) (ADEA). See also Richards v. JRK Prop.
Holdings, 405 F. App’x 829, 831 (5th Cir. 2010) (stating these as the elements the
plaintiff must allege facts to show at the 12(b)(6) stage).
To establish causation, the third element of the retaliation cause of action, a
plaintiff must ultimately demonstrate but-for causation. See Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (Title VII); Sherrod v. Am. Airlines, Inc.,
132 F.3d 1112, 1122 (5th Cir. 1998) (ADEA).
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2.
Pena’s Title VII and ADEA Retaliation Claims Will Be
Dismissed
Pena filed an EEOC Charge of Discrimination in “early 2017.” Amended
Complaint, ¶ 5.31. Pena also alleges that she engaged in protected activity by
complaining to “Tom Anderson in Human Resources and to David Cross at the
EEOC Office” “up to six times" of race and age discrimination, without specifying
dates. Id. ¶ 5.20. Pena further alleges, again without identifying any dates, that
HCC retaliated against her “by refusing to consider [her], hire her or transfer [her]
to [a] position for which she was well qualified, most highly qualified and
positions which she had performed before.”
Id. ¶ 5.30.
As noted, Pena
inconsistently alleges that, in August 2017, after she filed the EEOC Charge of
Discrimination, she was given a position as “Campus Manager” at the Southeast
location.” Id. ¶ 5.26.
Pena’s factual allegations fail to establish a causal link between her
protected activity and HCC’s retaliatory actions. Pena’s own allegations suggest
that the denials of her transfer requests predate her protected activity.5 While Pena
5
Plaintiff alleges that in October 2018, after this suit was filed and one month
before she filed her Amended Complaint, that HCC “informed Plaintiff that it was
eliminating all five of the campus manager positions at just her campus.”
Amended Complaint, ¶ 5.34. “Defendant has further informed Plaintiff that two
campus manager positions would be posted campus wide as well as open posting
and Plaintiff and her fellow campus manager would have to re-apply for those
(continued…)
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later complained of discriminatory conduct, Pena’s allegations do not support a
causal link between her complaints and these denials of transfers. Courts find no
causal link between the protected activity and adverse employment action when the
adverse employment action predates the protected activity. See Miceli v. JetBlue
Airways Corp., No. 18-1345, 2019 WL 336516, at *7 (1st Cir. Jan. 28, 2019)
(“[W]hen problems with an employee predate any knowledge that the employee
has engaged in protected activity, it is not permissible to draw the inference that
subsequent adverse actions, taken after the employer acquires such knowledge, are
motivated by retaliation.” (citation omitted)); Verma v. Univ. of Pa., 533 F. App’x
115, 119 (3d Cir. 2013) (“[T]his Court has declined to infer such a causal link
where an employee’s negative performance evaluations predated any protected
activity.”); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 309 (4th Cir.
2006) (“The actions that led to [plaintiff’s] probation and termination began before
her protected activity, belying the conclusion that a reasonable factfinder might
find that [her employer’s] activity was motivated by [plaintiff’s] . . . complaints.”);
Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (“We hold that, in a
(continued…)
positions. Plaintiff has applied for one other position as well.” Id. These
allegations do not support Plaintiff’s retaliation claims as five position, not just
Plaintiff’s are being eliminated and no decisions have been made about Plaintiff’s
applications.
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retaliation case, when an employer contemplates an adverse employment action
before an employee engages in protected activity, temporal proximity between the
protected activity and the subsequent adverse employment action does not suffice
to show causation.”); Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d
Cir. 2001) (“Where timing is the only basis for a claim of retaliation, and gradual
adverse job actions began well before the plaintiff had ever engaged in any
protected activity, an inference of retaliation does not arise.”). Pena fails to plead
an essential element of her Title VII and ADEA retaliation claims, and thus her
claims will be dismissed with prejudice.
C.
Title VII and ADEA Discrimination
1.
Legal Standard for Title VII and ADEA Discrimination
Claims
To establish a prima facie case6 of race or national origin discrimination
under Title VII, Pena must show that she: (1) “is a member of a protected class”;
6
While neither party raises this point, Fifth Circuit “precedent is clear” that
plaintiffs “need not make out a prima facie case of discrimination in order to
survive a rule 12(b)(6) motion to dismiss for failure to state a claim” if there are
allegations sufficient to plead a plausible discrimination claim on the merits. See
Whitlock v. Lazer Spot, Inc., 657 F. App’x 284, 286 (5th Cir. 2016) (quoting Raj v.
La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013)). The “ultimate question” for
Pena’s discrimination claims is whether the HCC “took the adverse employment
action against a [her] because of her protected status.” Raj, 714 F.3d at 331
(alteration in original) (quoting Kanida v. Gulf Coast Med. Personnel LP, 363
F.3d 568, 576 (5th Cir. 2004)). This discriminatory intent can be shown by
alleging facts sufficient to show the elements of a prima facie case. See Body by
(continued…)
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(2) “was qualified for [her] position”; (3) “was subject to an adverse employment
action”; and (4) “was replaced by someone outside the protected class, or, in the
case of disparate treatment, shows that others similarly situated were treated more
favorably.” See Harrison v. Corr. Corp. of Am., 476 F. App’x 40, 43 (5th Cir.
2012) (per curiam) (quoting Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245
F.3d 507, 512-13 (5th Cir. 2001)).
To establish a prima facie case of age discrimination under the ADEA, Pena
must show that she: (1) is over 40; (2) was qualified for her position; (3) “suffered
an adverse employment decision”; and (4) she was “replaced by someone younger
or treated less favorably than similarly situated younger employees.” Leal v.
McHugh, 731 F.3d 405, 410-11 (5th Cir. 2013). Pena alternatively can establish a
prima facie case with direct evidence, i.e., statements “showing discriminatory
motive on its face.” See Battiste v. Clerk of Court, Office of Avoyelles Par., No.
1:17-CV-00740, 2018 WL 4009118, at *2 (W.D. La. Aug. 22, 2018).
(continued…)
Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 387 (5th Cir. 2017). As
both sides rely on the prima facie case analysis, the Court addresses the motion
accordingly.
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2.
Pena’s Title VII and ADEA Discrimination Claims
a.
Pena States a Claim for Title VII Discrimination
Pena adequately alleges the prima facie elements of a Title VII
discrimination claim. Pena pleads: (1) she is a member of a protected class;7 (2)
she was qualified to be Manager of Board Services; (3) she suffered an adverse
employment action because HCC removed the bulk, if not all, of substantive her
job duties; (4) her office was moved to a non-restricted area that all employees
could enter, and (5) she was functionally replaced by someone outside her
protected class (Sharon Wright). Pena also alleges she suffered disparate treatment
in her work rules and conditions relative to her similarly situated African American
coworkers.
HCC asserts that Pena’s pleadings demonstrate she was not qualified for her
position as Manager of Board Services. Liberally construing Pena’s Amended
Complaint, the Court concludes that Pena adequately pleaded she was qualified.
Pena pleaded that she was told by HCC’s Chancellor’s Chief of Staff that “they
really wanted her in” the Manager of Board Services position and that HCC
“believe[ed]” her “to be qualified for the” position. Pena alleges that she did not
7
See Warren v. City of Carlsbad, 58 F.3d 439, 442 (9th Cir. 1995) (holding
Mexican descent is a protected class).
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receive any training once she was given the position and there was no one
available to help her make the transition. Pena does not allege, however, that she
was unqualified. At this stage of the case, the Court declines to conclude as a
matter of law that Pena was not qualified for her position as Manager of Board
Services.
HCC next contends that Pena failed to allege a specific adverse employment
action. Not so. Pena alleged that HCC’s “adverse treatment” involved stripping
her of her job duties. This qualifies as an adverse employment action. “In certain
instances, a change in or loss of job responsibilities . . . may be so significant and
material that it rises to the level of an adverse employment action.” See Thompson
v. City of Waco, 764 F.3d 500, 504 (5th Cir. 2014); see also Dahm v. Flynn, 60
F.3d 253, 257 n.2 (7th Cir. 1994) (“[I]f the duties of an assistant prosecutor were
changed from trying cases to sharpening pencils, that change would be materially
adverse . . . .”). Pena’s allegations establish a “significant and material” loss of job
responsibilities. See Thompson, 764 F.3d at 504. She alleged that HCC took
“away almost all of her job duties,” and left her “only with the most menial”
responsibilities. Pena specifically alleges she was left with responsibilities for
setting up for meetings (e.g., pouring water, putting out candy, setting up name
plates), or ministerial duties during the sessions (specifically, working the
PowerPoint). She alleges also that she was excluded from high-level meetings.
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Reflecting her diminished duties, Pena’s office was transferred to a storage closet
that other employees frequented, apparently to make photocopies.
These
allegations suffice to demonstrate Pena suffered an adverse employment action.
Pena’s Amended Complaint sufficiently alleges the four elements of a prima facie
case for Title VII discrimination. The Court declines to dismiss Pena’s Title VII
discrimination claim.
b.
Pena States a Claim for ADEA Discrimination
Pena adequately alleges the prima facie elements of an ADEA
discrimination claim. Pena alleges: (1) she is 62; (2) she was qualified for her
Manger of Board Services position; and (3) she suffered an adverse action by
having her job duties stripped. Pena, however, does not allege she was replaced by
someone younger or that she was treated “less favorably than similarly situated
younger employees.” See Leal, 731 F.3d at 410-11. Indeed, Pena makes no
allegations about the age of other HCC employees. Instead, Pena contends that
comments she received from her direct supervisor, HCC’s chief of staff, and
HCC’s director of human resources “show[ ] discriminatory motive on [their]
face.” See Battiste, 2018 WL 4009118, at *2.
Pena’s allegations of age-related comments suffice at this stage of the case.
Repeated ageist comments demonstrate a prima facie case for age discrimination.
See Rachid v. Jack In The Box, Inc., 376 F.3d 305, 313 (5th Cir. 2004). While an
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employer “may make reasonable inquiries into the retirement plans of its
employees,” it remains the case that “retirement inquiries can sometimes be so
unnecessary and excessive as to constitute evidence of discriminatory harassment.”
See Montgomery v. John Deere & Co., 169 F.3d 556, 560 (8th Cir. 1999). See also
Guthrie v. J.C. Penney Co., Inc., 803 F.2d 202, 208 (5th Cir. 1986) (“[T]he jury
could have believed that [the employer’s] need to plan for vacancies motivated its
first inquiry into [the plaintiff’s] retirement plans. However, the jury could also
have believed that the later, repeated inquiries were unnecessary and constituted
intentional harassment.”).
Here, the Court cannot conclude that the several
retirement inquiries allegedly made by HCC management and/or human resources
individuals were not “unnecessary and excessive.” See Montgomery, 169 F.3d at
560. Pena alleges that when she complained about her treatment, she was told on
“many occasions” by at least three different HCC employees that they thought she
would retire.
Pena’s sufficiently alleges the elements of a prima facie case for ADEA
discrimination. HCC’s Motion is denied regarding Pena’s ADEA discrimination
claim.
IV.
ORDER
It is hereby
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ORDERED that Defendant’s Motion to Dismiss [Doc. # 13] is GRANTED
in part and DENIED in part. It is further
ORDERED that Plaintiff’s 28 U.S.C. § 1981 claim is DISMISSED with
prejudice. It is further
ORDERED that Plaintiff’s Title VII and ADEA retaliation claims are
DISMISSED with prejudice.
SIGNED at Houston, Texas, this ___ day of February, 2019.
13th
NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE
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