United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE United States District Judge.
for consideration the motion of defendant, City of Fort
Worth, to dismiss plaintiff's first amended complaint.
The court, having considered the motion, the response of
plaintiff, Edwin Hayden, the record, and applicable
authorities, finds that the motion should be granted in part.
operative pleading is plaintiff's first amended
complaint filed July 28, 2017. Doc. 16. In it, he
is a police officer employed by defendant. Doc. 16 at 2,
¶ 6. In December 2015, he sought a position as a school
resource officer at Chisholm Trail High School. Id.,
¶ 12. Lieutenant Elgin ("Elgin") told
plaintiff that "they" were going to place him at
the school and that the school wanted him. Id.,
¶ 13. Shortly after that meeting, plaintiff's
supervisor, Sergeant Wisdom ("Wisdom"), told
plaintiff he had already promised the position to Officer
Meyer a couple of months earlier. Id., ¶ 14.
Officer Myers is a younger, Caucasian male. Id. at
3, ¶ 15. Wisdom and Elgin promised plaintiff that he
would be given the position when it next became available.
Id., ¶¶ 17, 18. Officer Myers left the
position in February 2016 and plaintiff expressed his
interest by email and told Elgin he wanted the position.
Id., ¶¶ 19, 21-22. Defendant denied
plaintiff the position and awarded it to another Caucasian
officer. Id., ¶ 25; id. at 4, ¶
29. The position at Chisholm Trail was a better position than
the one plaintiff held for a number of reasons. Id.,
¶¶ 30-40. Plaintiff complained several times on the
basis of age and race discrimination. Id. at 5,
¶¶ 42-45. Plaintiff was retaliated against because
of his complaints by being denied a better position during
the summer. Id., ¶¶ 47-51; Id. at
6, ¶¶ 52-62. On or about June 15, 2016, plaintiff
filed a charge of discrimination with the- United States
Equal Employment Opportunity Commission ("EEOC").
Id. at 7, ¶ 64. On or around June 22, 2016,
defendant mandated that plaintiff enter the Employee
Assistance Program ("EAP"), giving him conflicting
reasons for doing so. Id., ¶¶ 65, 66.
asserts claims for race discrimination and retaliation under
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17 ("Title VII"), and
42 U.S.C. §§ 1981 & 1983. He also asserts a
claim for age discrimination and retaliation under the Age
Discrimination in Employment Act of 1967, 29 U.S.C.
§§ 621-34 ("ADEA").
of the Motion
maintains that plaintiff has failed to state any plausible
claims against it'. In particular, defendant says that
plaintiff has failed to state a claim under section 1981
because he has not alleged that he was subjected to
discrimination or retaliation based on an official policy or
custom of defendant. Second, plaintiff has failed to allege
facts to support a plausible claim under Title VII. And,
third, plaintiff has failed to allege facts to support a
plausible claim under the ADEA.
8(a)(2) Pleading Standards
8(a)(2) of the Federal Rules of Civil Procedure provides, in
a general way, the applicable standard of pleading. It
requires that a complaint contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief, " Fed.R.Civ.P. 8(a)(2), "in order to
give the defendant fair notice of what the claim is and the
grounds upon which it rests, " Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and ellipsis omitted). Although a complaint need not
contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a
cause of action. Twombly, 550 U.S. at 555 & n.3.
Thus, while a court must accept all of the factual
allegations in the complaint as true, it need not credit bare
legal conclusions that are unsupported by any factual
underpinnings. See Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) ("While legal conclusions can provide the
framework of a complaint, they must be supported by factual
to survive a motion to dismiss for failure to state a claim,
the facts pleaded must allow the court to infer that the
plaintiff's right to relief is plausible. Iqbal,
556 U.S. at 678. To allege a plausible right to relief, the
facts pleaded must suggest liability; allegations that are
merely consistent with unlawful conduct are insufficient.
Id. In other words, where the facts pleaded do no
more than permit the court to infer the possibility of
misconduct, the complaint has not shown that the pleader is
entitled to relief. Id. at 679. "Determining
whether a complaint states a ...