United States District Court, S.D. Texas, Houston Division
CHRISTOPHER J. TYMCZAK, Plaintiff,
TEXAS SOUTHERN UNIVERSITY, Defendant.
OPINION AND ORDER
MELINDA HARMON UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Motion to Dismiss (Doc. 5), as
well as Plaintiff's Response (Doc. 6) and Defendant's
Reply (Doc. 7). Upon review and consideration of these
filings, relevant legal authority, and for the reasons
explained below, the Court finds that Defendant's Motion
to Dismiss should be granted.
Christopher Tymczak (“Plaintiff” or
“Tymczak”), a Caucasian male, has been employed
as a tenured faculty member at Texas Southern University
(“Defendant”) since 2006. Doc. 1 at 3. Plaintiff
alleges that Defendant discriminated against him because of
his race in violation of Civil Rights Act, 42 U.S.C. §
2000e, through the discriminatory actions of his supervisor.
Id. at 1, 4.
relevant times Plaintiff was under the administrative
supervision of Carlos R. Handy (“Handy”), an
African-American male. Id. at 4. Plaintiff
alleges that Handy subjected Plaintiff to disparate treatment
because of his race. Id. Plaintiff states that Handy
made derogatory comments and criticisms of his teaching and
research, opposed his “professional advancement”
by disparaging his qualifications for promotion and tenure,
interfered with his research efforts, subjected him to
harassment and accusations, and denied him employment
opportunities. Id. at 4-5. Plaintiff also asserts
that Handy “interfere[d] with his faculty compensation,
including improper reduction in pay, and block[ed] . . .
payment from research grants.” Id. at 5.
According to Plaintiff, complaints against Handy's
actions toward Tymczak and other non-African-American faculty
members were presented to University officials. Id.
at 6. Plaintiff contends that, while Defendant agreed to
mediation regarding these complaints, it did not
“provide any opportunity for interactive discussions of
a mutually acceptable resolution, ” nor did Defendant
implement the proposal for resolution following mediation.
Id. at 7. On June 15, 2015, Plaintiff filed charges
of racial discrimination with the Equal Employment
Opportunity Commission (“E.E.O.C.”). Id.
On June 1, 2016, Plaintiff received notice of his right to
sue. Id. at 9. Plaintiff then timely filed suit on
August 29, 2016. Id.
Motion to Dismiss, Defendant asserts that, under Fed.R.Civ.P.
12(b)(6), Defendant is not subject to liability because
Plaintiff did not plead sufficient facts to support his
discrimination claim under Title VII. According to Defendant,
Plaintiff's Complaint fails to allege: (1) that any
adverse employment action was suffered by Plaintiff; (2) that
other similarly-situated employees were treated more
favorably; and (3) any facts giving rise to a reasonable
inference of discrimination against Plaintiff. Doc. 5 at 3-5.
Further, Plaintiff failed to allege sufficient facts to
support a retaliation claim under Title VII. Id. at
5. In his Response Plaintiff contends that, even evaluated
under McDonnell Douglas, his Complaint properly
pleads discrimination because interference with compensation
is an adverse action. Doc. 6 at 2-3. Furthermore, Plaintiff
argues that the allegation that similarly situated
African-American individuals were not treated in the same
manner is “implicit” in the Complaint.
Id. at 3. Plaintiff also asserts that his
“articulation of a practice” by an employee of
Defendant to “mistreat individuals who are not
African-American establishes a plausible claim of invidious
racial discrimination.” Id. at 4.
Additionally, Plaintiff states that retaliation was not
intended as a claim in the Complaint; the word
“retaliation” was merely used in the prayer for
injunctive relief against future retaliation. Id. at
5. However, Plaintiff reserves the right to state such a
claim in a subsequent pleading. Id. Therefore the
Court will only consider Defendant's arguments regarding
Plaintiff's claim of discrimination.
Standard of Review
12(b)(6) of the Federal Rules of Civil Procedure authorizes
the filing of a motion to dismiss a case for failure to state
a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the
grounds of [his] entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of a cause
of action's elements will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007) (internal quotations omitted). A plaintiff
must allege sufficient facts to state a claim that is
“plausible” on its face. Id. at 569. A
claim is facially plausible when a “plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
676, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing
Twombly, 550 U.S. at 556). However, a Rule 12(b)(6)
motion to dismiss “is viewed with disfavor and is
rarely granted.” Kaiser Aluminum & Chem. Sales
v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir.
1982). Therefore, the complaint must be liberally construed
in favor of the plaintiff, all reasonable inferences are to
be drawn in favor of the plaintiff's claims, and all
factual allegations pleaded in the complaint must be taken as
true. Overton v. JMPC Chase Bank, No. CIV. A.
H-09-3690, 2010 WL 1141417, at *1 (S.D. Tex. March 20, 2010)
(citing Campbell v. Wells Fargo Bank, 781 F.2d 440,
442 (5th Cir. 1986)). It is the court's responsibility to
determine whether the plaintiff has stated a legally
cognizable claim that is plausible, not to evaluate the
plaintiff's likelihood of success. Id. However,
conclusory allegations and unwarranted factual deductions
will not suffice to avoid a motion to dismiss. United
States ex rel. Willard v. Humana Health Plan of Tex.,
Inc., 336 F.3d 375, 379 (5th Cir. 2003). “Where a
complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to relief.”
Iqbal, 129 S.Ct. at 1949 (quoting Twombly,
550 U.S. at 557) (internal quotations omitted).
a plaintiff's complaint must be dismissed for failure to
state a claim, the plaintiff should generally be given at
least one chance to amend the complaint under Rule 15(a)
before dismissing the action with prejudice.”
Steward v. Aries Freight Systems, L.P., No. CIV.A.
H-07-1651, 2007 WL 3001660, at *2 (S.D. Tex. Oct. 12, 2007)
(citing Great Plains Trust Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002)).
section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a)(1),
it is “an unlawful employment action for an
employer…to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment because of such
individual's race, color, religion, sex, or national
the statute, suit may be brought under two distinct theories
of discrimination, disparate treatment and disparate impact.
International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396
(1977); Pacheco v. Mineta, 448 F.3d 783, 787 (5th
Cir. 2006). “Title VII expressly prohibits both (1)
intentional discrimination based on race, color, religion,
sex or national origin, known as ‘disparate treatment,
' as well as (2) an employer's facially neutral
practices that are discriminatory in operation against
protected groups (race, color, religion, sex or national
origin) and not required by the nature of the job, known as
‘disparate impact.'” Agoh v. Hyatt
Corp., 992 F.Supp.2d 722, 732 (S.D. Tex. 2014) (citing
42 U.S.C. §§ 2000e-2(a)(1) and 2000e(k)(1)(A));
see also Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct.
2658, 2672-73, 174 L.Ed.2d 490 (2009); Pacheco, 448
F.3d at 787. The instant suit is one for disparate treatment,
which requires proof of discriminatory motive. Agoh,
992 F.Supp.2d at 732 (citing Pacheco, 448 F.3d at
Rule 12(b)(6) motion to dismiss, it is not necessary for the
Court to follow the Title VII burden-shifting analysis
established by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). Johnson v. Alice Independent School
Dist., No. CIV.A. C-12-170, 2012 WL 4068678, at *3 (S.D.
Tex. Sept. 14, 2012). “[T]he McDonnell Douglas
framework is an evidentiary standard, not a rigid pleading
requirement.” Puente v. Ridge, 324 F.
App'x. 423, 427 (5th Cir. 2009) (citing Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 506-07, 122 S.Ct. 992, 152
L.Ed.2d 1 (2002)). However, the Fifth Circuit has explained
that courts “may consider the McDonnell
Douglas framework, and no plaintiff is exempt from her
obligation to ‘allege facts sufficient to state all the
elements of her claim.'” Puente, 324 F.
App'x. at 427-28 (quoting Mitchell v. Crescent River
Port Pilots Ass'n, 265 F. App'x. 363, 370 (5th
Cir. 2008)); see also Stone v. Louisiana Dep't of
Revenue, 590 F.App'x 332, 339 (5th Cir. 2014)
(“Although [plaintiff] need not plead a prima facie
case, she is not exempt from her obligation to allege facts
sufficient to state all the elements of her
claim.”) (emphasis in original, internal quotations and
citations omitted). While the plaintiff only needs to plead
facts at this stage of litigation, “‘[t]he
complaint must contain either direct allegations on every
material point necessary to sustain a recovery . . . or
contain allegations from which an inference fairly may be
drawn that evidence on these material points will be
introduced at trial.'” Kreit v. Corrado,
No. CIV A H-05-0564, 2006 WL 2709239, at *1 (S.D. Tex. Sept.
20, 2006) (quoting Campbell v. City of San Antonio,
43 F.3d 973, 975 (5th Cir. 1995)).
elements of a prima facie case of intentional
discrimination under a disparate treatment theory are that
Plaintiff “(1) is a member of a protected class . . .;
(2) was qualified for the position; (3) was subjected to an
adverse employment action . . .; and (4) . . . shows that
other similarly situated employees [not in the
plaintiff's class] were treated more favorably.”
Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th
Cir. 2004). Defendant challenges Plaintiff's complaint
based on the last two elements of a prima facie case
for discrimination. According to Defendant, none of
Handy's acts alleged by Plaintiff amount to an adverse
employment action. Doc. 5 ...