Opinion
EP-21-CV-00187-FM
12-05-2022
TERESA SHOBNEY, Plaintiff, v. MERRICK GARLAND, United States Attorney General, Defendant.
ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS
FRANK MONTALVO UNITED STATES DISTRICT JUDGE
Before the court are “Defendant's Motion for Judgment on the Pleadings” (“Motion”) [ECF No. 29], filed September 1, 2022, by Merrick Garland (“Defendant”); “Plaintiff's Response to Defendant's Motion for Judgment on the Pleadings” (“Response”) [ECF No.33], filed September 19, 2022, by Teresa Shobney (“Plaintiff”); and “Defendant's Reply in Support of His Motion for Judgment on the Pleadings” (“Reply”) [ECF No. 34], filed September 23, 2022, by Defendant. After due consideration of the Motion, Response, Reply, and applicable law, the Motion is GRANTED.
I. BACKGROUND
A. Factual Background
Plaintiff has been a Federal Bureau of Investigation (“FBI”) auditor since March 2010. In 2013, she filed an Equal Employment Opportunity (“EEO”) complaint based on sex and age discrimination and hostile work environment. Subsequently, an EEO investigator interviewed one of Plaintiff's supervisors, Special Agent in Charge (“SAC”) Mark Morgan. During the interview and in his signed statement, Mr. Morgan allegedly made belittling and condescending remarks about Plaintiff, accused her of violating the FBI's standards of conduct, and threatened her with disciplinary action. Plaintiff believes Mr. Morgan made his remarks to intimidate her and prevent her “from fully utilizing the EEO process.”
“Amended Complaint” (“Compl.”) 4 ¶ 15, ECF No. 10, filed Feb. 18, 2022.
Id. at 4 ¶¶ 15-16.
Id. at 4 ¶ 16.
Id.
Id. at 4 ¶¶ 16-17.
Throughout 2018 and 2019, several things allegedly happened that upset Plaintiff. In January 2018, a supervisor “yelled at Plaintiff and hung up the phone on her.” That same month, another supervisor “questioned Plaintiff in an assertive manner about her knowledge of her job description.” In February 2018, a supervisor “barged into Plaintiff's office and raised his voice while she was attending a virtual meeting,” which Plaintiff theorizes was because of her “race, sex, age, national origin, and reprisal.” In April 2018, she “received a negative mid-year assessment,” which she claims was purely retaliatory and entirely “false and incorrect.” “From April 2018 to September 2018,” a supervisor “avoided meeting with her to discuss topics related to her job” and eventually brought in “a young white male to show Plaintiff how to do her job.”In June 2018, “the Unit Chief grabbed Plaintiff's arm [and] told her that if she were Plaintiff's supervisor, she would have written her up for the way she spoke to the Assistant [SAC].” This Assistant SAC allegedly told Plaintiff she should quit and work elsewhere. “In July or August 2018, the Unit Chief embarrassed Plaintiff when he sent e-mails to employees asking for their help to complete her audit.” “Sometime in 2018, Plaintiff was told that she lacked emotional intelligence.” In February 2019, one of her supervisors told her in front of other employees that she lacked integrity and had communication problems. Finally, in December 2019, Plaintiff was given a performance rating of “Inconsistent.” Plaintiff speculates this was because one supervisor “cannot stand to see an ‘older Hispanic woman' auditing for the FBI.” She also claims her supervisors talked to her like “an ‘ignorant immigrant' simply because [she] is an older Hispanic woman.”
Id. at 5 ¶ 19.
Id.
Id. at 5 ¶ 19; 6 ¶ 23.
Id. at 5 ¶ 19, 6-7 ¶ 24.
Id. at 5 ¶ 19; 7 ¶ 25.
Id.
Id.
Id.
Id.
Id.
Id.
Id. at 10 ¶ 36.
Id. at 10 ¶ 39.
B. Procedural Background
Plaintiff filed a complaint in this court in 2017 based on claims of sex discrimination, age discrimination, retaliation, and hostile work environment (“Shobney I”). The facts undergirding Shobney I included the 2013 allegations detailed above-i.e., the EEO investigator's interview with Mr. Morgan and Mr. Morgan's subsequent signed statement (the “2013 Allegations”). The court dismissed Plaintiff's retaliation claim for failure to state a claim. Plaintiff subsequently amended her complaint, omitting the 2013 Allegations. The court dismissed her remaining hostile work environment, sex discrimination, and age discrimination claims on the merits.
Shobney v. Sessions, No. 3:17-cv-00234-DCG (“Shobney I”), “Complaint” 9-11, ECF No. 1, filed July 28, 2017.
Id. at 3-4.
Shobney I, “Memorandum Opinion and Order” 7, ECF No. 17, entered Apr. 23, 2018; “Order” 7, ECF No. 22, entered June 27, 2018.
Shobney I, “Amended Complaint,” ECF No. 20, filed May 15, 2018.
Shobney I, “Order” 1-2, ECF No. 22, entered June 27, 2018.
Plaintiff filed her complaint in the instant case in August 2021, asserting a Title VII retaliation claim, now alleging the 2018-2019 facts described above and repleading the 2013 Allegations. Defendant moved to dismiss, but Plaintiff amended her complaint shortly thereafter. The court therefore denied Defendant's motion to dismiss as moot. Plaintiff's amended complaint asserts claims of relief for retaliation; hostile work environment; and discrimination based on sex, racial and national origin, and age. In September 2022, Defendant filed his Motion, Plaintiff filed her Response, and Defendant filed his Reply.
“Complaint,” ECF No. 1, filed Aug. 12, 2021.
“Defendant's Motion to Dismiss,” ECF No. 9, filed Feb. 16, 2022; Compl.
“Order Denying Motion as Moot,” ECF No. 25, entered Aug. 9, 2022.
Compl. at 5, 11-12.
“Defendant's Motion for Judgment on the Pleadings” (“Mot.”), ECF No. 29, filed Sept. 1, 2022; “Plaintiff's Response to Defendant's Motion for Judgment on the Pleadings” (“Resp.”), ECF No.33, filed Sept. 19, 2022; “Defendant's Reply in Support of His Motion for Judgment on the Pleadings,” ECF No. 34, filed Sept. 23, 2022.
C. Parties' Arguments
Defendant makes the following arguments. First, Plaintiff's retaliation claim, to the extent it is based on the 2013 Allegations, should be dismissed as barred by res judicata. Alternatively, she fails to state a claim for retaliation more generally since she has not alleged an adverse employment action. For the same reason, Plaintiff has failed to state for claim for discrimination. Plaintiff's potential hostile work environment claim fails to state a claim because she has not shown any harassment was based on her protected status. Nor was any alleged harassment sufficiently severe or pervasive.
Mot. at 7-11.
Id. at 12.
Id.
Id. at 15.
Id. at 16-17.
Plaintiff responds that her retaliation claim is not barred by res judicata since she amended her complaint in Shobney I to remove her retaliation claim before the court issued a final judgment on the merits. Moreover, she asserts SAC Morgan's comments constitute an adverse employment action because they had a chilling effect by dissuading Plaintiff from prosecuting charges of discrimination. Other than these assertions, Plaintiff does not meaningfully respond to Defendant's arguments.
Resp. at 9.
Id. at 12.
II. LEGAL STANDARD
“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” “A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard as a motion to dismiss under Rule 12(b)(6),” which allows dismissal of a complaint for “failure to state a claim for which relief can be granted.” “The central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief.”To survive such a motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” “[F]acial plausibility” exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Therefore, a complaint is not required to set out “detailed factual allegations,” but it must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Although the court must accept well-pleaded allegations in a complaint as true, it does not afford conclusory allegations similar treatment.
Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 (5th Cir. 2002) (internal quotation marks and citation omitted); see also In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Id. (citing Twombly, 550 U.S. at 556).
Twombly, 550 U.S. at 555.
See Kaiser Aluminum & Chem. Sales, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (citing Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974)).
III. DISCUSSION
Plaintiff's amended complaint asserts claims of relief for retaliation; hostile work environment; and discrimination based on sex, racial and national origin, and age.
Compl. at 5, 11-12.
A. Retaliation
As a threshold matter, Plaintiff's 2013 Allegations may not form the basis for her retaliation claim here since the court rendered a final judgment on her retaliation claim in Shobney I, which was based on these same allegations. Plaintiff asserts she amended her complaint in Shobney I to remove the 2013 Allegations and, therefore, the retaliation claim in that case “was not concluded by a final judgment on the merits.” This is plainly false. Her retaliation claim was dismissed for failure to state a claim. Dismissals for failure to state a claim are with prejudice by default.“Generally, a federal court's dismissal with prejudice is a final judgment on the merits for res judicata purposes.” Accordingly, Plaintiff's 2013 Allegations may not be considered again for purposes of a retaliation claim against this Defendant.
Resp. at 9.
Shobney I, Memorandum Opinion and Order at 7.
Mandawala v. Ne. Baptist Hosp., Counts 1, 2, and 11, 16 F.4th 1144, 1155 (2021).
Stevens v. Bank of America, N.A., 587 Fed.App'x. 130, 133 (5th Cir. 2014).
Besides the 2013 Allegations, Plaintiff also alleges the events throughout 2018 and 2019 constitute retaliation because they were reprisals for her 2013 EEO activity.
Compl. at 5 ¶ 19.
To establish a prima facie retaliation claim, Plaintiff must prove three things; First, that “she engaged in an activity that Title VII protects.” Filing an EEO complaint is a protected activity. Second, Plaintiff must show Defendant “carried out an adverse employment action,”which, in the retaliation context, “is defined slightly more broadly than the term is defined in the employment discrimination context.” Here, an adverse employment action is one that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Finally, Plaintiff must show “a causal nexus exists between her protected activity and [Defendant's] adverse action.” “Title VII retaliation claims must be proved according to traditional principles of but-for causation,” meaning Plaintiff must show “proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Temporal proximity between protected activity and adverse action “may only create a genuine dispute of material fact on the issue of but-for causation if the employee also introduces other probative evidence of pretext.”
Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 439 (5th Cir. 2005).
Standley v. Rogers, 202 F.Supp.3d 655, 668 (W.D. Tex. 2016).
Harvill, 433 F.3d at 439.
Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 826 (5th Cir. 2019).
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (cleaned up).
Harvill, 433 F.3d at 439.
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
Cephus v. Tex. Health and Hum. Servs. Comm'n, 146 F.Supp.3d 818, 832 (S.D. Tex. 2015) (citation and internal quotation marks omitted).
Plaintiff's retaliation claim fails most glaringly on the final element. There is simply no indication of a but-for connection between the events in 2013 and those in 2018. Furthermore, at least five years passed between these periods, which is vastly too much time to support causation based on temporal proximity. Even if it were not, Plaintiff has offered no evidence of pretext. Therefore, Plaintiff's retaliation claim must be dismissed.
See Besser v. Tex. Gen. Land Off., 834 Fed. App'x. 876, 885 (5th Cir. Nov. 3, 2020) (following guidance from ClarkCnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) in establishing that no more than two-and-a-half months should elapse between a protected activity and an adverse employment action when the causal connection between the two is based on temporal proximity).
B. Hostile Work Environment
Plaintiff asserts she was subjected to a hostile work environment based on race, national origin, sex, and age. To establish a hostile work environment claim under Title VII or the Age Discrimination in Employment Act (“ADEA”), Plaintiff must show, among other things, that she suffered unwelcome harassment based on her membership in a protected class.
Compl. at 5 ¶ 19.
West v. City of Houston, Tex., 960 F.3d 736, 741 (5th Cir. 2020) (reciting the elements of a Title VII hostile work environment claim); Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 441 (5th Cir. 2011) (reciting the elements of an ADEA hostile work environment claim).
On this score, Plaintiff's hostile work environment claim plainly fails because she never factually connects any harassment to her protected classes. She claims SAC Morgan's 2013 EEO interview comments were belittling and insulting. At points throughout 2018 and 2019, she alleges her supervisors barged into her office, yelled at her, questioned her in an assertive manner, told her she had communication problems and lacked emotional intelligence and integrity, avoided meeting with her, gave her a negative performance rating and mid-year assessment, and that her Unit Chief grabbed her arm and reprimanded her, and later embarrassed her by asking other employees over email to help her with her audits.
Compl. at 4 ¶ 16.
Id. at 5 ¶ 19.
She speculates the mistreatment was because of her age, sex, race, and national origin, and claims one of her supervisors “cannot stand to see an ‘older Hispanic woman' auditing for the FBI.” But baseless speculation will not suffice. She alleges her supervisors talked to her like an “ignorant immigrant.” There is no indication, however, of what exactly she means or how the court is to interpret this vague and conclusory accusation. Finally, she notes an individual brought in to help her with her job was “a young white male.” This is not harassment. Because none of Plaintiff's allegations are factually based on her protected status, her hostile work environment claim must be dismissed.
Id. at 5 ¶ 19; 6 ¶ 23; 10 ¶ 36.
Id. at 10 ¶ 39.
Id. at 5 ¶ 19; 7 ¶ 25.
C. Discrimination
To establish a case of discrimination under Title VII or the ADEA, Plaintiff must show, among other things, that she 1) suffered an adverse employment action and 2) was treated less favorably than similarly situated employees outside her protected class. In this context, adverse employment actions “include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensation.”
Paske v. Fitzgerald, 785 F.3d 977, 985 (5th Cir. 2015); Leal v. McHugh, 731 F.3d 405, 410-11 (5th Cir. 2013).
Welsh, 941 F.3d. at 824.
Plaintiff's discrimination claims fail on both points. First, none of her allegations pertain to any adverse employment actions since nowhere does she claim she was fired or denied leave, promotion, or compensation, or the like. Her negative mid-year assessment and performance rating of “Inconsistent” are not adverse employment actions. Second, she makes no allegations that employees outside her protected class were treated any differently. Therefore, her Title VII and ADEA discrimination claims must be dismissed.
See Compl. at 5 ¶ 19; Wilder v. Stephen F. Austin State Univ., 552 F.Supp.3d 639, 657 (E.D. Tex. 2021).
IV. CONCLUSION
Accordingly, it is HEREBY ORDERED that “Defendant's Motion for Judgment on the Pleadings” [ECF No. 29] is GRANTED.