Connor v. Office of the Attorney General of Texas

Filing 38

REPORT AND RECOMMENDATIONS re 17 Motion to Dismiss filed by Office of the Attorney General of Texas, 29 Motion to Dismiss filed by Karin McDougal, Office of the Attorney General of Texas, Allan Cook. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MADELEINE CONNOR
VS.
OFFICE OF THE ATTORNEY
GENERAL OF TEXAS, KARIN
McDOUGAL AND ALLAN COOK

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NO. A-14-CV-961 LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are Defendants’ Motions to Dismiss Pursuant to Federal Rule 12(b)(6), filed

in November 2014 (Dkt. Nos. 17 & 29); Plaintiff’s Supplemental Response, filed on December 22,
2014 (Dkt. No. 34); and Defendants’ Reply, filed on January 9, 2015 (Dkt. No. 37). The undersigned
submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C.
§ 636(b) and Rule 1(h) of Appendix C of the Local Court Rules of the United States District Court
for the Western District of Texas.
I.

GENERAL BACKGROUND

Plaintiff Madeline Connor (“Connor”), an attorney, has been employed in the General
Litigation Division of the Office of the Attorney General of Texas (“OAG”) since May 21, 2007.
On October 23, 2014, Connor filed this lawsuit under the Equal Pay Act of 1963 (“EPA”) alleging
that the OAG violated the EPA by paying her unequal compensation as compared to her male coworkers, in violation of 29 U.S.C. § 206(d)(10) and § 215(a)(2). Connor also alleges that the OAG
has retaliated against her for filing the instant lawsuit in violation of 29 U.S.C. § 215(a)(3). In her

Third Amended Complaint,1 Connor alleges a claim under 42 U.S.C. § 1983 against Karin
McDougal and Allan Cook individually, alleging that they violated her First Amendment rights by
issuing a litigation hold containing a speech ban.
II. STANDARD OF REVIEW
Rule 12(b)(6) allows for dismissal of an action “for failure to state a claim upon which relief
can be granted.” While a complaint attacked by a Rule 12(b)(6) motion does not need detailed
factual allegations in order to avoid dismissal, the plaintiff's factual allegations “must be enough to
raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). A plaintiff’s obligation “requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. The Supreme Court has explained
that a complaint must contain sufficient factual matter “to state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. 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.” Id. In evaluating a
motion to dismiss, the Court must construe the complaint liberally and accept all of the plaintiff's
factual allegations in the complaint as true. See In re Katrina Canal Breaches Litigation, 495 F.3d
191, 205 (5th Cir. 2009).
III. ANALYSIS
A.

Wage Discrimination Claim under the EPA
The OAG argues that Connor cannot establish a prima facie case of wage discrimination

under the EPA because she has failed to come forward with specific facts to support her claim and
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Defendants ask the Court to strike the Third Amended Complaint because it was filed
without leave of Court. The Court declines to do so, as it would have granted Connor leave if she
had sought it. The Court reminds Connor that in the future she must obtain leave of court to file
any amended complaints.
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has only “alleged broad generalizations and conclusory allegations, which does not suffice.” Motion
to Dismiss at p. 19. The Court disagrees.
The EPA prohibits an employer from discriminating against its employees on the basis of sex
by paying wages to employees of one sex “in such establishment at a rate less than the rate at which
[the employer] pays wages to employees of the opposite sex” for equal work on jobs that require
“equal skill, effort, and responsibility, and which are performed under similar working conditions....”
29 U.S.C. § 206(d)(1). To establish a prima facie case for wage discrimination under the EPA, a
plaintiff must show that: “(1) her employer is subject to the Act; (2) she performed work in a
position requiring equal skill, effort, and responsibility under similar working conditions; and (3) she
was paid less than the employee of the opposite sex providing the basis of comparison.” Chance v.
Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993). Once a plaintiff has established a prima facie case,
the burden shifts to the employer to “prove by a preponderance of the evidence that the wage
differential is justified under one of the four affirmative defenses set forth in the Equal Pay Act: (1) a
seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of
production; or (4) any other factor than sex.” Siler–Khodr v. Univ. of Tex. Health Science Ctr. San
Antonio, 261 F.3d 542, 546 (5th Cir. 2001).
As noted above, the second element of a prima facie case of wage discrimination requires
a plaintiff to show that “she performed work in a position requiring equal skill, effort, and
responsibility under similar working conditions.” Chance, 984 F.2d at 153. “To establish ‘equal
work,’ the plaintiff need not prove that the duties performed are identical, but merely that the ‘skill,
effort and responsibility’ required in the performance of the jobs is ‘substantially equal.’” Pearce v.
Wichita County, City of Wichita Falls, Texas, Hospital Bd., 590 F.2d 128, 133 (5th Cir. 1979)
(quoting Brennan v. City Stores, Inc., 479 F.2d 235, 238-39 (5th Cir. 1973)). Although a plaintiff
need not identify a comparator with identical job responsibilities and title, “she must identify
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someone with circumstances ‘nearly identical’ to her own, such that the court can evaluate her claim
of unfair treatment.” Weaver v. Basic Energy Services, 578 F. App’x 449, 451 (5th Cir. 2014). In
other words, “[t]he Act necessarily requires a plaintiff to compare her skill, effort, responsibility and
salary with a person who is or was similarly situated.” Jones v. Flagship Int’l, 793 F.2d 714, 723 (5th
Cir. 1986), cert. denied, 479 U.S. 1065 (1987). Whether two jobs “require equal skill, effort, and
responsibility, and are performed under similar working conditions is a factual determination.”
Fallon v. State of Illinois, 882 F.2d 1206, 1208 (7th Cir. 1989). Because job duties vary so widely,
the provisions of the Equal Pay Act must be applied on “a case-by-case basis.” E.E.O.C. v. Mercy
Hosp. and Medical Center, 709 F.2d 1195, 1197 (7th Cir. 1983).
In support of her wage discrimination claim, Connor alleges the following:
Plaintiff’s pay is substantially lower than many of her male co-workers who work in
the same civil litigation division of the OAG as Plaintiff, the General Litigation
Division. Defendant OAG summarizes the skill, effort, and responsibilities of an
attorney working in GLD as follows: “The General Litigation Division defends state
agencies, elected and appointed state officials, and state employees in civil rights
litigation including employment litigation. Such suits include whistleblower claims,
tenure denials, claims of discrimination, student dismissals, and First and Fourteenth
Amendment constitutional claims. The division represents clients in libel, slander
and other tort actions. The division defends against challenges to the constitutionality
of state statutes. The division handles state and federal suits through all litigation
stages including the appellate process.”
The work performed by Plaintiff requires equal or greater skill, effort, and
responsibilities as her male co-workers in GLD. Plaintiff's male co-workers in GLD
who are paid more yet perform under the same working conditions as Plaintiff
include, or have included, the following: Tom Albright, Darren Gibson, Dan Perkins,
Eric Vinson, Drew Harris, Marc Reitvelt, Esteban Soto, and Andrew Stephens.
Plaintiff's pay is substantially lower than at least one male attorney, Allan K. Cook,
who works in another civil litigation division of the OAG, The Law Enforcement
Defense Division (LED). Defendant OAG summarizes, in pertinent part, the skill,
effort, and responsibilities of an attorney working in LED as follows: “The Law
Enforcement Defense Division provides representation for all state law enforcement
agencies, their officials and employees in against elected officials.” Although
assigned to another civil litigation division of the OAG, Defendant Cook told
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Plaintiff he performs the same kind of work that makes up most of Plaintiff’s docket
(employment discrimination cases).
Amended Complaint at 3-4.
These allegations are sufficient to state an EPA wage discrimination claim that is plausible
on its face. Ashcroft, 556 U.S. at 678. Connor has alleged sufficient facts to show that her job duties
were substantially similar to her male comparators and that those comparators were payed more for
“substantially equal” jobs. Pearce, 590 F.2d at 133. That is all that is required to state a prima facie
claim for relief for wage discrimination under the EPA at this stage of the proceedings. Id. Notably,
the OAG does not argue that Connor’s job is not substantially similar to those of her comparators,
but rather simply argues that Connor has failed to allege sufficient facts to support her claim.
In support of its argument that Connor fails to allege sufficient facts to support her claim, the
OAG relies heavily on the Second Circuit’s decision in EEOC v. Port Authority of New York and
New Jersey, 768 F.3d 247 (2nd Cir. 2014), in which the Second Circuit affirmed the Rule 12(b)(6)
dismissal of a an EPA claim where the EEOC had failed to sufficiently allege that the female
attorneys performed substantially equal work as the male attorneys. The Port Authority case can be
easily distinguished from the instant lawsuit. Both the Fifth and Second Circuits require an EPA
claim at the pleading stage of a case to “include sufficient factual matter, accepted as true to permit
the reasonable inference that the relevant employee’s job content was substantially equal.” Id. at 256
(citing Iqbal, 556 U.S. at 678) (internal citations omitted). Applying this standard to the specific
facts of its case, the Second Circuit found that the EEOC had failed to allege sufficient facts to show
that male comparators’s job duties were substantially equal to the plaintiffs’ job duties. The Second
Circuit emphasized that after a three-year investigation conducted with the Port Authority’s
cooperation, “the EEOC’s complaint and incorporated interrogatory responses rely almost entirely
on broad generalizations drawn from job titles and divisions, and supplemented only by the
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unsupported assertion that all Port Authority nonsupervisory attorneys had the same job, to support
its ‘substantially equal’ work claim.” Id. at 256. Unlike the EEOC in Port Authority, Connor has
not simply referred to job codes or job titles or alleged “an attorney is an attorney is an attorney,” but
rather has alleged specific facts regarding her job duties and the job duties of her male comparators
and thus has alleged a prima facie claim of wage discrimination. In addition, unlike the plaintiff in
Port Authority, Connor has not had three years in which to investigate her claim but rather is in the
initial discovery phase of the case. Thus, the OAG’s reliance on Port Authority for its precedential
value in this case is misplaced.
B.

Retaliation Claim under EPA
Like Title VII, the EPA, through the Fair Labor Standards Act (“FLSA”), prohibit employers

from retaliating against employees who engage in protective activity under the Act. Browning v.
Southwest Research Inst, 288 F. App’x 170, 178 (5th Cir. 2008), cert. denied, 555 U.S. 1170 (2009).
To establish a prima face case of retaliation under the EPA, a plaintiff must show: (1) she
participated in an activity protected by the Act; (2) her employer took an adverse employment action
against her; and (3) a causal connection exists between the protected activity and the adverse
employment action. Thibodeaux-Woody v. Houston Comty. Coll., -- F. App’x --, 2014 WL 6064479,
at * 4 (5th Cir. Nov. 14, 2014) (citing Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575
(5th Cir.), cert. denied, 540 U.S. 817 (2003)). If the plaintiff makes this showing, the burden shifts
to the employer to articulate a legitimate, nonretaliatory reason for the adverse employment action.
Id.
Connor alleges that after she filed this lawsuit, the OAG retaliated against her by (1) issuing
a libelous statement to the media which defamed her professional reputation, and (2) issuing a
litigation hold that contained unconditional directives to Connor and potential witnesses not to talk

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about this lawsuit to anyone.2 The OAG argues that Connor has failed to allege sufficient facts to
show that the above-actions were adverse employment actions. The Court agrees.
“The antiretaliation provision protects an individual not from all retaliation, but from
retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006). For purposes of a retaliation claim, an adverse employment action is one that “a
reasonable employee would have found . . . materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Id. (internal quotations and citations omitted). Whether an alleged action is retaliatory will “depend
upon the particular circumstances. Context matters.” Id. at 69. Normally, “petty slights, minor
annoyances, and simple lack of good manners will not create such deterrence.” Id. at 68.
As noted, Connor’s Third Amended Complaint alleges that the adverse employment actions
consisted of (1) a libelous statement to the media which defamed her professional reputation, and
(2) a litigation hold that contained unconditional directives to Connor and potential witnesses not
to talk about this lawsuit to anyone. With regard to the alleged libelous statement, Connor simply
makes a conclusory statement that “Defendant OAG issued a libelous statement to the media
defaming her professional reputation only one day after filing this lawsuit.” Dkt. No. 25 at ¶ 21.
Connor, however, fails to state what the libelous statement was, how it was false, and how the
statement defamed her professional reputation. Without such facts, the Court cannot conclude that
a reasonable employee would have found the action “materially adverse,” i.e, that it would have
dissuaded a reasonable worker from making a charge of discrimination. Burlington, 548 U.S. at 68.
See also, Griffin v. Potter, 356 F.3d 824, 829-30 (7th Cir. 2004) (holding that supervisor’s alleged
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Connor’s Third Amended Complaint also alleged that the OAG retaliated against her by
“assigning a lawsuit to her to defend before this Court in order to intimidate her and deter her from
pursuing her right to redress her grievances against the OAG.” Dkt. No. 25 at ¶ 21. Connor has
subsequently withdrawn this claim. See Dkt. No. 34 at 8.
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hostility towards postal employee, which manifested in form of negative comments about employee,
was not so severe or pervasive as to qualify as actionable adverse employment action); Mylett v. City
of Corpus Christi, 97 F. App’x 473, 476 (5th Cir. 2004) (finding that alleged humiliation including
countermanding plaintiff’s orders in front of his subordinates and characterizing him as a liar were
not adverse employment actions); Stewart v. Evans, 275 F.3d 1126, 1136 (D.C. Cir. 2002) (finding
that publishing report that allegedly damaged plaintiff’s reputation was not adverse employment
action where plaintiff failed to show that it affected her job performance ratings or the conditions
of her employment).
Connor has also failed to show that the litigation hold constituted an adverse employment
action. Connor’s Third Amended Complaint alleges that “Defendant OAG also issued a litigation
hold that contained unconditional directives to Plaintiffs and potential witnsess[es] not to talk about
this lawsuit to anyone, which is prohibited by the First Amendment.” Dkt. No. 25 at ¶ 21. The
litigation hold letter states, in relevant part, the following:
As a result of our agency's receipt of the following information, the OAG anticipates
litigation against the agency and/or some of its employees. The notice relates to a
Complaint filed against the Office of the Attorney General of Texas in the United
States District Court, Western District of Texas. As indicated by Ms. Madeleine
Connor:
"This is an action brought under the Equal Pay Act of 1963 (EPA) to
correct unlawful employment practices of the basis of gender."
Litigation has been initiated by Madeleine Connor. Therefore, pursuant to the Data
Preservation for Pending or Potential Litigation Policy, a litigation hold has been
issued regarding this matter. It is imperative that the OAG preserve all documents
and electronic information that may be relevant to the employee or charges stated.
This memorandum is being addressed to you because you have been identified as an
individual who may have created, modified, or stored documents and electronic
information that are related to the matter as referenced herein.
You are directed not to discuss this document, or the matter referenced herein,
without first contacting Allan Cook, AAG at [phone]or Kim Coogan, AAG
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at [phone]. You are further directed not to discuss the litigation hold and the
contents of this memorandum without first contacting the Litigation Hold Response
Team (the "team") or its designated representatives. Please see the attached list of
team members and representatives. The team and its representatives can assist you
with your duties to comply with the terms of this memorandum. This direction is
made to ensure that the rights and interests of all individuals involved, including the
right to privacy, are safeguarded. It is also made to ensure that the work-product and
attorney-client privileges are preserved.
You are directed to retain, and not alter, any information that is relevant to the matter
referenced in the document. You must undertake retention of any information,
including any written as, well as electronic information, regardless of the OAU’s
retention policies or any other policies applicable to your division. You should also
note that electronic information includes emails, voicemail messages, and all types
of information that is commonly created, stored, and transferred by computer. This
requirement also pertains to relevant electronic information that may be stored on
your personal computing devices.
This litigation hold is effective on the first day you obtained any knowledge of the
hold and will continue in effect until you receive written notice from the team that
the litigation hold has been released.
Exh. A to Plaintiff’s Supplemental Response.
Connor acknowledges that after she complained about the “speech ban” in the litigation hold,
the OAG “issued a different litigation hold without the constitutionally infirm language in it.” Dkt.
No. 25 at ¶17. Thus, the Court is a bit perplexed as to what exactly Connor is complaining about.
Regardless, Connor has failed to show that the litigation hold was an adverse employment action.
Once the OAG was notified of Connor’s lawsuit, the OAG was under a duty to preserve relevant
evidence and thus issued a standard “litigation hold” letter. See Ashton v. Knight Transp., Inc., 772
F. Supp.2d 772, 800 (N.D. Tex. 2011) (“A duty to preserve arises when a party knows or should
know that certain evidence is relevant to pending or future litigation.”); Adorno v. Port Authority of
New York and New Jersey, 258 F.R.D. 217, 228 (S.D.N.Y. 2009) (noting that the defendant was
under an obligation to “put in place a litigation hold” after plaintiff filed EEOC complaint); Zubulake
v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (“Once a party reasonably anticipates
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litigation, it must suspend its routine document retention/destruction policy and put in place a
‘litigation hold’ to ensure the preservation of relevant documents.”). Connor has failed to show how
issuing a standard litigation hold letter would dissuade a reasonable worker from making a charge
of discrimination. Accordingly, Connor has failed to make out a prima facie claim of retaliation
under the EPA.
C.

First Amendment Claim against the Individual Defendants
Connor has also asserted a First Amendment claim under 42 U.S.C. § 1983 against Karin

McDougal (“McDougal”), an Assistant Attorney General in the General Counsel Division of the
OAG, and Allan Cook (“Cook”), an Assistant Attorney General in the Law Enforcement Defense
Division of the OAG. Connor alleges that McDougal and Cook issued a litigation hold containing
“a speech ban unlimited in scope and time that affirmatively denies Plaintiff’s First Amendment
rights to speech, assembly, and to petition for redress of grievances.” Plaintiff’s Response at p. 9.3
Defendants argue that Connor’s First Amendment claim should be dismissed because McDougal and
Cook are entitled to qualified immunity.
“The doctrine of qualified immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity shields federal and
state officials from money damages unless a plaintiff pleads facts showing (1) that the official
violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time
of the challenged conduct. Harlow, 457 U.S. at 818. “A Government official’s conduct violates

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Connor clarifies in her Response that she is not asserting a First Amendment retaliation
claim in this lawsuit. Thus, the Court need not address Defendants’ arguments with regard to First
Amendment retaliation. See Plaintiff’s Supplemental Response at p. 8.
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clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are]
sufficiently clear’ that every ‘reasonable official would have understood that what he is doing
violates that right.’” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). Once the defense of qualified immunity has been raised, the
burden shifts to the plaintiff to show that it does not apply. Jones v. Lowndes County, Miss., 678 F.3d
344, 351 (5th Cir. 2012).
Connor has failed to allege sufficient facts to show a violation of her First Amendment rights.
First, as discussed above, Connor concedes that after she complained about the “speech ban” in the
litigation hold, the OAG issued a different litigation hold “without the constitutionally infirm
language in it.” Third Amended Complaint at ¶17. Connor fails to explain how such action violated
her First Amendment rights. Moreover, even if the OAG had failed to remove the objectionable
language from the litigation hold, Connor has failed to show that a reasonable official would have
understood that issuing such a litigation hold would have violated Connor’s First Amendment rights.
In fact, Connor has failed to even respond to the Defendants’ argument that they are entitled to
qualified immunity, and has thus failed to sustain her burden to show that the doctrine of qualified
immunity does not apply in this case. See Jones, 678 F.3d at 351. As a result, Connor’s First
Amendment claims against Defendants McDougal and Cook should be dismissed.
IV. RECOMMENDATION
Based upon the foregoing, the Court RECOMMENDS that Defendants’ Motions to Dismiss
Pursuant to Federal Rule 12(b)(6) (Dkt. Nos. 17 & 29) be GRANTED IN PART AND DENIED IN
PART. The Court RECOMMENDS that the Motions to Dismiss Plaintiff’s wage discrimination
claim under the Equal Pay Act be DENIED, and the Motions to Dismiss Plaintiff’s retaliation claim
under the Equal Pay Act be GRANTED. Lastly, the Court RECOMMENDS that the Motions to

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Dismiss Plaintiff’s First Amendment claims against Karin McDougal and Allan Cook be GRANTED
and Defendants Karin McDougal and Allan Cook be dismissed from this lawsuit.
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 5th day of March, 2015.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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