Sussman v. University of Texas Medical Branch

Filing 16

OPINION AND ORDER GRANTING MOTION TO DISMISS granting 7 MOTION to Dismiss . The claims for race discrimination and retaliation under Title VII are dismissed without prejudice. Sussman may seek leave to replead in this regard by 06/25/2021.(Signed by Judge Charles Eskridge) Parties notified.(jengonzalez, 4)

United States District Court
Southern District of Texas

ENTERED
June 04, 2021
Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ANNA SUSSMAN,
Plaintiff,
vs.
UNIVERSITY OF
TEXAS MEDICAL
BRANCH,
Defendant.

§ CIVIL ACTION NO.
§ 4:21-cv-00298
§
§
§ JUDGE CHARLES ESKRIDGE
§
§
§
§
§
§

OPINION AND ORDER
GRANTING MOTION TO DISMISS
The motion by Defendant University of Texas Medical
Branch to dismiss is granted. Dkt 7.
1. Background
Plaintiff Anna Sussman began working for Defendant
University of Texas Medical Branch in June 2003 at the level of
Nurse Clinician I. She was eventually promoted to the level of
Nurse Clinician IV at the UTMB Galveston campus. Dkt 1 at ¶ 12.
Counsel confirmed at hearing that Sussman is still employed by
UTMB but without advising as to her current position or duties.
Penny Priestley was (and possibly still is) her manager.
Sussman states that Priestly hired Sarah Brown in June 2019 to
be the Patient Care Facilitator. Sussman alleges that Brown was
“directly above” her in the UTMB hierarchy and was immediately
hostile, harassing her daily. Id at ¶ 13. She claims, for example,
that Brown would follow her to harass her with questions
unrelated to her work or performance. She also claims that
Brown “always looked for ways to denigrate and belittle” her by
questioning her “judgment and professional qualities.” Sussman
says that she tried to avoid Brown, but Brown would still reach

out via email, “attacking her credibility and professionalism.”
Id at ¶ 14.
Sussman specifically describes one incident where she was
on the phone with Priestley discussing a staffing issue. She alleges
that Brown grabbed the phone from her and hung up without
asking. Sussman also claims that Brown told her staffing wasn’t
important and proceeded to “berate” her and “question her
ability to be a Nurse Clinician IV” because she “requested
additional staff for the night staff.” Id at ¶ 15. And she alleges
that Brown thereafter began to spread “half-truths and outright
lies” about her to coworkers and peers. And further, that Brown
would tell her that certain tasks needn’t be done, only to then tell
Priestly the opposite and blame Sussman for “poor
performance.” Id at ¶ 16.
Sussman thus asserts that “the evidence unambiguously
shows that Ms. Brown was harassing exclusively her Hispanic
supervisees,” including Sussman. And, Sussman says, UTMB
“allowed the culture of animus towards Hispanic people to
flourish” by ignoring her complaints about Brown. Id at ¶ 22.
Sussman states that she sought medical attention because of
this situation with Brown, and that her doctor prescribed
medication upon diagnosis of “major depressive disorder,
anxiety, suicide ideation, and panic attacks.” Id at ¶ 17. Sussman
says that in August 2019 she was ultimately “forced to seek the
protection of the federal law and take an FMLA leave to tend to
her work-related injuries.” Id at ¶¶ 17, 19.
Sussman alleges that she “raised the issue of harassment with
UTMB’s human resources department, prior to the situation
descending to the point of actionable discrimination and
harassment.” Id at ¶ 20. But, Sussman says, she was ridiculed and
accused of being unwilling to work and wasn’t offered “help,
counseling, or anything of sorts.” Ibid. Sussman later filed a
charge with the United States Equal Employment Opportunity
Commission against UTMB in November 2019 “for
discrimination based on sex, retaliation, and other (harassment;
hostile work environment).” The EEOC issued Sussman a rightto-sue notice in November 2020. Id at ¶ 10. She then brought
this action against UTMB in January 2021, asserting claims for

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race discrimination in violation of Title VII of the Civil Rights
Act of 1964, 42 USC § 2000e-2(a), and § 21.051 of the Texas
Labor Code. Id at ¶¶ 23–30. She also asserts claims for retaliation
in violation of Title VII and § 21.055 of the Texas Labor Code.
Id at ¶¶ 31–35.
UTMB moves to dismiss the claims under the Texas Labor
Code pursuant to rule 12(b)(1) of the Federal Rules of Civil
Procedure for lack of subject-matter jurisdiction. And it moves
to dismiss the race-discrimination and retaliation claims under
Title VII pursuant to rule 12(b)(6) of the Federal Rules of Civil
Procedure for failure to state a claim. Dkt 7. Oral argument was
heard on the motion. Dkt 15.
2. Legal standard
a. Rule 12(b)(1)
Federal courts are ones of limited jurisdiction. Howery v
Allstate Insurance Co, 243 F3d 912, 916 (5th Cir 2001), citing
Kokkonen v Guardian Life Insurance Co of America, 511 US 375, 377
(1994). Rule 12(b)(1) permits a defendant to seek dismissal of an
action for lack of subject-matter jurisdiction. The Fifth Circuit
holds that dismissal is appropriate “when the court lacks the
statutory or constitutional power to adjudicate the claim.” In re
FEMA Trailer Formaldehyde Products Liability Litigation (Mississippi
Plaintiffs), 668 F3d 281, 286 (5th Cir 2012), quoting Home Builders
Association, Inc v City of Madison, 143 F3d 1006, 1010 (5th Cir 1998).
The burden is on the party asserting jurisdiction to establish
by a preponderance of the evidence that subject-matter
jurisdiction is proper. New Orleans & Gulf Coast Railway Co v
Barrois, 533 F3d 321, 327 (5th Cir 2008), citing Howery, 243 F3d
at 919; Paterson v Weinberger, 644 F2d 521, 523 (5th Cir 1981).
Indeed, a presumption against subject-matter jurisdiction exists
that “must be rebutted by the party bringing an action to federal
court.” Coury v Prot, 85 F3d 244, 248 (5th Cir 1996).
b. Rule 12(b)(6)
Rule 8(a)(2) requires a plaintiff’s complaint to provide “a
short and plain statement of the claim showing that the pleader
is entitled to relief.” Rule 12(b)(6) allows the defendant to seek

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dismissal if the plaintiff fails “to state a claim upon which relief
can be granted.”
Read together, the Supreme Court has held that Rule 8 “does
not require ‘detailed factual allegations,’ but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v Iqbal, 556 US 662, 678 (2009), quoting Bell
Atlantic Corp v Twombly, 550 US 544, 555 (2007). To survive a
Rule 12(b)(6) motion to dismiss, the complaint “must provide the
plaintiff’s 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 Taylor, 503 F3d 397, 401
(5th Cir 2007), quoting Twombly, 550 US at 555.
A complaint must therefore contain enough facts to state a
claim to relief that is plausible on its face. Twombly, 550 US at 570.
A claim has facial plausibility “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 US at 678, citing Twombly, 550 US at 556. This standard on
plausibility is “not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 US at 678, quoting Twombly, 550 US at 557.
Review on motion to dismiss under Rule 12(b)(6) is
constrained, being generally limited to the contents of the
complaint and its attachments. Brand Coupon Network LLC v
Catalina Marketing Corp, 748 F3d 631, 635 (5th Cir 2014). The
reviewing court must accept all well-pleaded facts as true and
view them in the light most favorable to the plaintiff. Walker v
Beaumont Independent School District, 938 F3d 724, 735 (2019). But
“courts ‘do not accept as true conclusory allegations,
unwarranted factual inferences, or legal conclusions.’” Vouchides v
Houston Community College System, 2011 WL 4592057, *5 (SD Tex),
quoting Gentiello v Rege, 627 F3d 540, 544 (5th Cir 2010).
3. Analysis
a. TCHRA claims
Sussman brings claims for race discrimination and retaliation
under §§ 21.051 and 21.055 of the Texas Labor Code, otherwise
known as The Texas Commission on Human Rights Act. Dkt 1
at ¶¶ 28–30, 34–35. UTMB moves to dismiss those claims

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pursuant to Rule 12(b)(1) as barred by sovereign immunity. Dkt 7
at 4–5.
The Fifth Circuit observes, “In the TCHRA, the State of
Texas waives its immunity to suit in state courts, but it ‘does not
expressly waive sovereign immunity in federal court.’” Sullivan v
Texas A&M University System, 986 F3d 593, 599 (5th Cir 2021),
quoting Perez v Region 20 Education Service Center, 307 F3d 318, 332
(5th Cir 2002) (emphasis in original). This is because “a State’s
waiver of sovereign immunity in its own courts is not a waiver of
the Eleventh Amendment immunity in the federal courts.”
Pennhurst State School & Hospital v Halderman, 465 US 89, 99 n 9
(1984) (citations omitted). As such, “the Eleventh Amendment
bars the adjudication of pendent state law claims against
nonconsenting state defendants in federal court.” Hernandez v
Texas Department of Human Services, 91 F Appx 934, 935 (5th Cir
2004, per curiam), citing Pennhurst, 465 US at 120.
This is in fact a well-settled proposition as applied to the
TCHRA. For example, see Pequeño v University of Texas at
Brownsville, 718 F Appx 237, 241 (5th Cir 2018); Wei-Ping Zeng v
Texas Tech University Health Science Center, 836 F Appx 203, 207 (5th
Cir 2020, per curiam); Hernandez v Texas Department of Human
Services, 91 F Appx 934, 935 (5th Cir 2004, per curiam) (citation
omitted). Yet counsel for Sussman flatly represented at hearing
that no reported Fifth Circuit precedent establishes that TCHRA
claims are barred by the Eleventh Amendment in federal court
absent waiver. He also didn’t disclose that he was counsel of
record in the citation above of Sullivan v Texas A&M University
System. That published Fifth Circuit opinion issued in February
2021, plainly holds that TCHRA claims are barred by sovereign
immunity (unless waived) in federal court. 986 F3d at 599.
The TCHRA claims must be dismissed. The lack of candor
by counsel in this regard is concerning and will be addressed by
separate order.
b. Race-discrimination claim
Sussman brings a claim for race discrimination in violation
of Title VII. Dkt 1 at ¶¶ 23–27. UTMB moves to dismiss for
failure to state a claim. Dkt 7 at 5–9.

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A prima facie case for race discrimination requires a plaintiff
to show that:
o First, she is a member of a protected class;
o Second, she was qualified for the position;
o Third, she was subject to an adverse employment
action; and
o Fourth, she was replaced by someone outside the
protected class, or, in the case of disparate
treatment, shows that other similarly situated
employees were treated more favorably.
Bryan v McKinsey & Co, 375 F3d 358, 360 (5th Cir 2004) (citations
omitted).
Sussman hasn’t sufficiently pleaded the third element of her
race-discrimination claim. The Fifth Circuit holds, “Adverse
employment actions include only ultimate employment decisions
such as hiring, granting leave, discharging, promoting, or
compensating.” Green v Administrators of Tulane Educational Fund,
284 F3d 642, 657 (5th Cir 2002), citing Walker v Thompson,
214 F3d 615, 629 (5th Cir 2000). On the other hand, precedent
makes clear that criticism such as “oral threats or abusive
remarks, does not rise to the level of an adverse employment
action.” Breaux v City of Garland, 205 F3d 150, 158 (5th Cir 2000),
citing Harrington v Harris, 118 F3d 359, 366 (5th Cir 1997).
Sussman hasn’t alleged that she’s been terminated, demoted,
denied a promotion, or denied leave. There’s also no indication
that her salary or benefits have been impacted. And counsel
confirmed at hearing that Sussman still works at UTMB. As such,
Sussman hasn’t sufficiently pleaded facts to establish that she was
subject to any ultimate employment decision.
Sussman fails to allege a prima facie claim of race
discrimination under Title VII. The claim must be dismissed.
c. Retaliation claim
UTMB also moves to dismiss the Title VII retaliation claim
pursuant to Rule 12(b)(6). Dkt 7 at 5–9; see Dkt 1 at ¶¶ 31–33.
A prima facie case for a retaliation requires a plaintiff to show
that:

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First, she engaged in activity protected by Title VII;
Second, the defendant took an adverse employment
action against her; and
o Third, a causal connection exists between the
protected activity and the adverse employment
action.
Zamora v City of Houston, 798 F3d 326, 331 (5th Cir 2015) (citations
omitted).
To sufficiently plead the second element, “a plaintiff must
show that a reasonable employee would have found the
challenged action materially adverse, which in this context means
it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington Northern &
Santa Fe Railway Co v White, 548 US 53, 68 (2006) (quotations
omitted). The Fifth Circuit holds that “retaliatory adverse
employment actions also need not rise to the level of ultimate
employment decisions.” Welsh v Fort Bend Independent School
District, 941 F3d 818, 827 (5th Cir 2019) (citations omitted). But
on the other hand, “Title VII’s anti-retaliation provisions do not
protect employees from ‘petty slights, minor annoyances, and
simple lack of good manners.’” Ibid, quoting Burlington Northern,
548 US 53, 67–68. When determining whether an allegedly
retaliatory action is materially adverse, courts “look to indicia
such as whether the action affected ‘job title, grade, hours, salary,
or benefits’ or caused ‘a diminution in prestige or change in
standing among . . . co-workers.’” Paul v Elayn Hunt Correctional
Center, 666 F Appx 342, 346 (5th Cir 2016, per curiam), quoting
Stewart v Mississippi Transportation Commission, 586 F3d 321, 332
(5th Cir 2009) (alterations in original).
Sussman hasn’t satisfied this element of her retaliation claim.
She hasn’t alleged that her job title, grade, hours, salary, or
benefits changed in any way or that she suffered a diminution in
prestige or change in standing among coworkers. No pleaded fact
otherwise suggests that Sussman has been subject to any adverse
employment action in the retaliation context.
Sussman fails to allege a prima facie claim of retaliation under
Title VII. This claim must be dismissed.
o
o

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4. Potential for repleading
Rule 15(a)(2) provides that a district court “should freely give
leave [to amend] when justice so requires.” The Fifth Circuit
holds that this “‘evinces a bias in favor of granting leave to
amend.’” Carroll v Fort James Corp, 470 F3d 1171, 1175 (5th Cir
2006) (citation omitted). But the decision whether to grant leave
to amend is within the sound discretion of the district court.
Pervasive Software Inc v Lexware GmbH & Co KG, 688 F3d 214, 232
(5th Cir 2012) (citation omitted). It may be denied “when it would
cause undue delay, be the result of bad faith, represent the
repeated failure to cure previous amendments, create undue
prejudice, or be futile.” Morgan v Chapman, 969 F3d 238, 248 (5th
Cir 2020), citing Smith v EMC Corp, 393 F3d 590, 595 (5th Cir
2004).
The TCHRA claims will be dismissed without prejudice
because subject-matter jurisdiction is lacking. Sussman may not
replead them.
The claims pursuant to Title VII are extremely thin as
pleaded. But they haven’t been subject to prior challenge by
UTMB or amendment by Sussman, and it isn’t clear that
repleading would be entirely futile. These claims will thus be
dismissed without prejudice. Any further attempt to plead them
will be subject to consideration under Rule 11(b). Prior to seeking
leave, Sussman must share a draft of her amended complaint with
UTMB. When conferring, UTMB must identify and attempt to
resolve in good faith any issues upon which it would intend to
bring further motion under Rule 12(b)(6) or Rule 12(c), in line
with Section 17 of this Court’s procedures.
5. Conclusion
The motion by Defendant University of Texas Medical
Branch to dismiss the claims against it pursuant to Rules 12(b)(1)
and (b)(6) is GRANTED. Dkt 7.
The claims for race discrimination and retaliation under
§§ 21.051 and 21.055 of the Texas Labor Code are DISMISSED
WITHOUT PREJUDICE without leave to replead.

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The claims for race discrimination and retaliation under Title
VII are DISMISSED WITHOUT PREJUDICE. Sussman may seek
leave to replead in this regard by June 25, 2021.
SO ORDERED.
Signed on June 4, 2021, at Houston, Texas.

Hon. Charles Eskridge
United States District Judge

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