Prew v. Llano Independent School District
Filing
24
ORDER GRANTING IN PART AND DENYING IN PART Defendant's 18 Motion to Dismiss as outlined in this Order. Signed by Judge Sam Sparks. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTE
DIVISION
KARENA PREW,
-2
Dj
Plaintiff,
-vs-
Pfl
1:38
r
Case No. A-13-CA-144-SS
LLANO INDEPENDENT SCHOOL DISTRICT,
Defendant.
ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Defendant Liano Independent School District's Second Amended Motion to Dismiss
[#18], Plaintiff Karena Prew's Response [#2 1], and LISD's Reply [#23]. Having reviewed the
documents, the governing law, and the file as a whole, the Court now enters the following opinion
and orders.
Background
This is an employment discrimination suit brought by Plaintiff Karena Prew under various
federal statutes. Prew is an elementary school teacher who alleges she suffered discrimination and
retaliation by reason of her disability (a condition which causes uncontrollable facial spasms), her
age (43 at the time), and comments or complaints she made about events in her classroom and at her
school. Prew alleges she was passed over for a transfer to a high school teaching job in favor of a
younger, non-disabled candidate. After Prew raised this issue with school district officials, she
contends she, her husband (also a teacher at the elementary school), and her son (a student at the
elementary school) were harassed in retaliation.
Prew filed this lawsuit on February 20, 2013. Llano ISD filed its first motion to dismiss,
which Prew followed with her First Amended Complaint [#9]. Complying with this Court's orders,
Llano ISD amended its motion to dismiss and refiled. Prew sought and was granted leave to file
another Amended Complaint [#15], her second, though it was still styled as a first amended
complaint. Three days later, Prew filed a third Amended Complaint [#16], though it was still styled
as a first amended complaint. The Clerk's office noted this latest pleading [#16] was a duplicate of
the previous pleading [#15], and the Court is not able to identify any substantive differences between
the documents.
In any event, Prew' s most recent live pleading is her Third Amended Complaint [#1 6], which
alleges the following causes of action: (1) failure to accommodate under the Americans with
Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (RA); (2) unlawful
retaliation under the ADA and RA; (3) hostile work environment under the RA; (4) discrimination
under the RA; (5) discrimination under the Age Discrimination in Employment Act (ADEA); and
(6) violation of her First Amendment right to petition, brought via
§
1983. Llano ISD has moved to
dismiss each cause of action for failure to state a claim.
Analysis
I.
Motion to
DismissRule 12(b)(6)Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain
statement of the claim showing that the pleader is entitled to relief"
FED.
R. Civ. P. 8(a)(2). A
motion under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss a complaint for
"failure to state a claim upon which relief can be granted."
FED.
R. Civ. P. 12(b)(6). The plaintiff
must plead sufficient facts to state a claim for relief that is facially plausible.
-2-
Ashcroft
v.
Iqbal,
556
U.s. 662, 678 (2009); Bell At!. Corp.
v.
Twombly, 550 U.S. 544, 570 (2007).' "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, 566 U.S. at 678. Although
a plaintifrs factual allegations need not establish that the defendant is probably liable, they must
establish more than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining
plausibility is a "context-specific task," and must be performed in light of a court's "judicial
experience and common sense." Id. at 679.
In deciding a motion to dismiss under Rule 12(b)(6), a court generally accepts as true all
factual allegations contained within the complaint. Leatherman
v.
Tarrant CnIy. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 164(1993). However, a court is not bound to accept
legal conclusions couched as factual allegations. Papasan
v.
A/lain, 478 U.S. 265, 286 (1986).
Although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead
"specific facts, not mere conclusory allegations." Tuchman v. DSC Commc 'ns Corp., 14 F.3d 1061,
1067 (5th Cir. 1994). In deciding a motion to dismiss, courts may consider the complaint, as well
as other sources such as documents incorporated into the complaint by reference, and matters of
which a court may take judicial notice. Tellabs, Inc.
v.
Makor Issues & Rights, Ltd., 551 U.S. 308,
322 (2007).
II.
Application
The Court will address each of Prew's causes of action in turn.
Prew, like a surprising number of litigants in 2013, continuesto cite Conleyv. Gibson, 355 U.S. 41(1957),
as the controlling pleading standard, notwithstanding the factConley was abrogated by Twombly in 2007 and Iqbal in
2009.
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A.
Failure to AccommodateADA and RA
Both the ADA2 and the RA require employers to make "reasonable accommodations" for
disabled employees. Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 734 (5th Cir. 1999) (ADA); see
29 U.S.C.
§
794(d) (incorporating ADA's Title I standards into RA). Reasonable accommodations
include "modifications or adjustments to the work environment, or to the manner or circumstances
under which the position held or desired is customarily performed, that enable a qualified individual
with a disability to perform the essential functions of that position." EEOC
v.
Chevon Phillips
Chemical Co., LP, 570 F.3d 606, 621 (5th Cir. 2009) (internal quotations and alteration omitted).
"An employee who needs an accommodation because of a disability has the responsibility of
informing her employer." Id.
Prew fails to plead any facts in support of her failure to accommodate claims. Prew does not
identify any particular accommodation she needed, requested, or was denied. The only
accommodation even referenced in her live pleading is a testing accommodation the school had
offered to her son. Prew's complaint thus wholly fails to give Liano ISD even basic notice of what
accommodations it is alleged to have failed to provide, and thus fails to state a claim. Prew offers
no substantive defense of these claims in her Response, and the Court therefore assumes Prew has
no objection their dismissal.
Llano ISD moves to dismiss Prew's ADA claims on the theory they are alleged under Title 11 of the ADA as
opposed to Title I, the section governing employment discrimination. Prew's Third Amended Complaint explicitly
removed all references to Title II, however, presumably to clarify Prew did not intend to sue under Title II. Llano ISD's
argument misses this detail. However, the parties acknowledge the ADA and RA generally share the same standards for
the retaliation and failure to accommodate claims raised under both statutes, and the Court thus addresses them both
together.
2
B.
RetaliationADA and RA
The elements of an unlawful retaliation claim under the ADA and RA are essentially the
same: plaintiff must show (1) she engaged in a protected activity; (2) she suffered an adverse
employment action; and (3) there is a causal connection between the protected act and the adverse
action. Seaman
v.
CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999) (ADA); Calderon
F. App'x 586, 592 (5th Cir. 2004) (unpublished) (RA). Llano ISD argues
v.
Potter, 113
Prew's pleading fails to
allege any retaliatory conduct or adverse employment action, and fails to show any causal connection
between her alleged protected activity and Llano ISD's actions.
Prew alleges Liano ISD retaliated against her for filing a grievance against the school board.
3d Am. Compl. [#16] ¶ 2. Prew states she filed this grievance on October 3, 2011. Id. ¶ 44.
Following the grievance, Prew's pleading chronicles virtually every interaction she had with school
officials for the next several months, including the following "retaliatory" acts: (1) school
administrators conducted "walkthroughs" of her husband's classroom on four occasions; (2) teachers
and secretaries "checked up" on Prew's classroom without advance notice; (3) Prew was required
to meet with a team leader twice each week and to attend Saturday workshops; (4) an administrator
emailed Prew about not submitting an "honor roll"; (5) the principal conducted an overly long (55
minute) evaluation of Prew's classroom; (6) Prew did not receive "tutorials" like other teachers; (7)
the principal repeatedly asked Prew for a copy of a phone recording she made of a closed-door
meeting they had; (8) the principal would not meet with Prew without a third-party witness present;
(9) on one occasion, Prew did not receive testing materials other teachers received; (10) a coworker
copied all fourth grade staff members on an email to Prew "questioning [Prew] about her actions";
(11) a custodian threw some of Prew's belongings in a dumpster and laughed at her; (12) Prew was
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asked to attend a behavior training conference other fourth-grade teachers were not asked to attend;
(13) a coworker "stared at" Prew during a meeting; (14) the principal did not respond to Prew's
satisfaction to Prew's emails about issues with her students' behavior; (15) Prew's coworkers were
told not to attend a board meeting she invited them to, and told not to associate with Prew; and (16)
Prew was told she did not qualify for leave under the Family Medical Leave Act, but had twenty days
of extended leave. 3d Am. Compi. ¶J 45-90.
As the facts themselves show, these actions simply do not rise to the level of actionable
retaliation. As in the Title VII retaliation context, a plaintiff cannot recover for "petty slights or
minor annoyances that often take place at work and that all employees experience." Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Moreover, there is no basis for concluding
many of these actions were retaliatory as there is no factual basis for believing these various teachers
or administrators who stared at or walked by or questioned Prew knew anything about the grievance
she filed. Absent knowledge of her protected activity, these actions cannot be causally connected to
Prew's grievance. Prew's allegations concerning her husband (whose classroom was subjected to
legally mandated walkthroughs Prew apparently felt were excessive) and her son (whose teacher
gave him detention every week and did not let him attend a field trip) are similarly disconnected, but
also do not rise to the level of "third-party reprisals" contemplated by Title VII. See Thompson
v.
N
Am. Stainless Steel, LP, 131 S. Ct. 863, 868 (2011).
Perhaps most importantly, Prew has failed to allege she suffered any adverse employment
action as a result of filing her grievance. See Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir. 2011)
("Adverse employment decisions include discharges, demotions, refusals to hire, refusals to promote,
and reprimands." (internal quotation marks omitted)). The only adverse employment action Prew
Ii!
even alleges is Liano ISD's refusal to transfer her to a high school teaching position. Llano ISD
contends such a move was merely a lateral transfer, and thus does not qualify as an adverse
employment action. See Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 769 (5th Cir. 2001)
(adverse employment actions are those involving "hiring, granting leave, discharging, promoting,
and compensating"); Burger
v.
Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999)
("Refusing an employee's request for a purely lateral transfer does not qualify as an ultimate
employment decision.")
Whether Prew taught at an elementary school or a high school, she would still be a Llano ISD
teacher. Prew asks the Court to "infer" the high school job was a promotion, but there are no facts
alleged to support drawing such an inference. For example, Prew pleads no facts indicating the high
school job entitled her to higher compensation, better benefits, additional responsibility, or even
more prestige. Courts frequently find minor changes in hours, locations, and even dutiesespecially
when such changes do not alter core employment criteria like salary, benefits, and job titleare not
adverse employment actions. See Craven
v. Tex.
Dep 't of Criminal Justice-Institutional Div., 151
F. Supp. 2d 757, 766 (N.D. Tex. 2001) (collecting cases). The Court thus finds Llano ISD's decision
not to transfer Prew was not an adverse employment action.
But even if the Court were to assume Liano ISD's decision not to transfer Prew to the high
school was an adverse employment action, this decision occurred in May 2011 ,JIve months before
Prew filed her grievance. The physical limitations of space and time prevent Llano ISD from
retaliating against Prew in May for something she would not do until October. The Court therefore
finds Prew has failed to state a viable retaliation claim under either the ADA or the RA.
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C.
DiscriminationRA
To succeed on her discrimination claim under the RA, Prew must show (1) she suffers from
a disability; (2) she is qualified for the job; (3) she suffered an adverse employment action; and (4)
she was replaced by a non-disabled person, or treated less favorably than non-disabled employees.
Milton v. Tex. Dep 't of Criminal Justice, 707 F.3d 570, 573 (5th Cir. 2013). As noted above, Prew
has not alleged she suffered any adverse employment action. Although Prew does not argue the
point, it is possible to generously construe the single sentence in her live pleading about FMLA leave
as alleging a denial of leave based on her disability, which could amount to an adverse employment
action. See McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007). However, Prew fails to
even allege she was wrongfully denied leave, and Liano ISD cannot be liable for not granting Prew
something to which she was not entitled. Moreover, the school explicitly gave her at least twenty
days of extended leave and told her to discuss "temporary disability" with the Superintendent. From
these sparse facts, the Court cannot conclude Liano ISD wrongfully denied Prew leave based on her
disability. Prew thus fails to allege any adverse employment action, and her discrimination claim
must be dismissed.
D.
Hostile Work EnvironmentRA
Assuming the Fifth Circuit recognizes a hostile work environment claim under the
RA,3
in
order to recover on such a claim Prew must show: (1) she belongs to a protected group; (2) she was
subjected to unwelcome harassment; (3) the harassment complained of was based solely on her
disability; (4) the harassment affected a term, condition, or privilege of employment; and (5) the
See Soledad v. U.S. Dep 't qf Treasury, 304 F.3d 500, 506 & n.8 (5th Cir. 2002) (noting the Fifth Circuit has
only recognized a hostile work environment claim under the ADA, but remarking, without deciding, "we believe that
the elements of a ERA] hostile work environment claim would be similar").
employer knew or should have known of the harassment and failed to take prompt, remedial action.
Soledad v. US. Dep 't of Treasury, 304 F.3d 500, 506 (5th Cir. 2002).
Unlike Prew's retaliation claim, her hostile work environment claim is not limited to
activities taken after her grievance. Prior to filing her grievance, Prew alleges she had numerous
abusive encounters with Llano ISD administrators. For example, Liano ISD's Superintendent
allegedly gave Prew a list of goals to work on, including controlling her facial twitches (caused by
her disability) and controlling how she viewed her disability. 3d Am. Compl. ¶ 34-36. After the
grievance was filed, the school principal allegedly treated Prew differently than other teachers by
requiring a third-party witness be present for any interactions between them, and by allegedly telling
other teachers not to associate with Prew. To be sure,
manyperhaps even the majorityof the
incidents catalogued by Prew are innocuous, representing either common workplace slights or
personal misinterpretations of legitimate activities. But some events are more serious, and make a
hostile work environment claim at least plausible. Llano ISD's motion to dismiss this claim is
therefore denied.
E.
DiscriminationADEA
The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges or employment, because of such individual's age." 29 U.S.C.
§
623(a)(l).
To succeed on an ADEA discrimination claim, Prew must prove: (1) she was a member of a
protected class (those over the age of 40); (2) she was qualified for the position; (3) she suffered an
adverse employment action; and (4) she was replaced by someone younger. See Rachid v. Jack In
The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004); Baldwin
v.
Sears, Roebuck& Co., 667 F.2d 458,
461 (5th Cir. 1982). Liano ISD argues Prew's ADEA claim fails because Prew has not alleged any
adverse employment action. As noted above, the Court agrees, because there are no pleaded facts
from which the Court can infer the high school job was anything other than a lateral transfer. Prew's
ADEA claim must therefore be dismissed.
F.
Right to
Petition
1983
Llano ISD's motion to dismiss treats Prew's First Amendment claim as a Speech Clause
retaliation claim, and Prew defends it on those grounds. Prew's actual complaint, however, is based
on the Petition Clause, not the Speech Clause: "The acts and omissions of the school district
deprived Plaintiff of her rights to redress her grievances to a governmental entity without
retribution, for which the School District Defendant is liable to Plaintiffs [sic] pursuant to 42 U.S.C.
§
1983 for compensatory monetary damages." 3d Am. Compl. [#16] ¶ 126 (emphasis added). The
two clauses are not identical, nor are causes of action arising under them always equivalent. See
generallyBorough of Duryea, Pa.
v.
Guarnieri, 131 5. Ct. 2488, 2494-2501 (2011)(distinguishing
between the Speech and Petition Clauses and discussing the history of the Petition Clause).
This distinction, though significant,4 ends up mattering little to the lone argument had by the
parties because both Speech Clause and Petition Clause claims require the public employee to show
her speech involved a matter of public concern. Id. at 2500; see also Finch v. Fort Bend Indep. Sch.
Dist., 333 F.3d 555, 563 (5th Cir. 2003) (one element of a "free speech retaliation claim" is "the
plaintiffs speech must involve a matter of public concern"). Whether speech addresses a matter of
public concern turns on the content, form, and context of the speech. Finch, 333 F.3d at 564 (citing
'
For example, it is unclear what "petition" Prew filed or what the contents of the petition were. However,
because Llano ISD did not raise this issue, the Court will not dismiss Prew's First Amendment claim on this basis.
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Connick v. Myers, 461 U.s. 138, 147-48 (1983)). The court's task is to distinguish between speech
on a matter of public concern made as a citizen and speech on
"matters only of personal interest"
made as a public employee. Id. at 563-64 (quoting Connick, 461 U.S. at 147).
Prew contends her complaints were about "student programming issues," and thus were
matters of public concern. P1.' s Resp. [#21] at 12. Prew points to several examples, including (1) the
principal's failure to look at her student discipline referrals, (2) the principal's refusal to assist Prew
with a reported "emergency in her classroom" without a third witness present, (3) emails Prew sent
to the principal about inappropriate and unsanitary student behavior, and (4) reports of Llano ISD
teachers being told not to assist Prew. These examples are wholly addressed at Prew's personal
employment conditions, not any matter of public concern. See Finch, 333 F.3d at 564 (principal's
presentations regarding the "internal administrative approach to running a school" did not implicate
a matter of public concern, even though principal tried to frame them as part
of "the national debate
over school choice"); Stewart v. Parish ofJefferson, 951 F.2d 681, 684 (5th Cir. 1992) (employee's
private complaints about employer's treatment of other employees amounted to speech on a matter
of personal interest made as an employee).
The only two authorities Prew cites in support of her argument are irrelevant, not binding on
this Court, and distinguishable. See Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 588 (6th Cir.
2008) (speech by parents about school officials did not implicate public concern doctrine); McGuire
v.
Warren, 490 F. Supp. 2d 331, 338-39 (S.D.N.Y. 2007) (district court allowed teacher to amend
complaint to allege specific instances of public speech about autistic children in the community not
receiving appropriate services from the defendant). The Court finds Prew has failed to state a claim
based on either the Speech Clause or the Petition Clause.
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Conclusion
This case should debunk any notion that the modern pleading standard, as articulated by
Twombly and
Iqbal,
is
a simple command to plead lots of facts. A more detailed complaint is not
necessarily a more viable one. In this case, Prew's lengthy complaint contains a large amount of
irrelevant details and petty slights which actually hurt, rather than help, Prew's claims. More
importantly, conspicuously absent are critical facts related to core elements of many ofPrew's causes
of action, such as the existence of an adverse employment action, or allegations of a specific denied
accommodation. But Prew has told a plausible story in support of a hostile work environment claim,
and the Court thus allows that claim to move forward.
Accordingly,
IT IS ORDERED that Defendant Liano Independent School District's Second
Amended Motion to Dismiss [#18] is GRANTED IN PART and DENIED IN PART, as
described in this opinion;
IT IS FINALLY ORDERED that Plaintiff Karena Prew's claims of (1) failure to
accommodate under the ADA and RA; (2) unlawful retaliation under the ADA and RA; (3)
discrimination under the RA; (4) discrimination under the ADEA; and (5) violations of her
First Amendment right to petition, brought via
§
1983, are DISMISSED WITHOUT
PREJUDICE. The only remaining claim is Prew's hostile work environment claim under the
SIGNED this the
/.tday of August 2013.
UNITED STATES DISTRICT JUDGE
144 rntd ord kkt.frm
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