United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
date, the Court considered the status of the above-styled and
numbered case. After careful consideration, the Court GRANTS
IN PART and DENIES IN PART Defendants' Motion to Dismiss.
Docket no. 27.
filed her Original Complaint on May 8, 2017. Docket no. 1. At
an oral hearing on September 28, 2017, the Court granted
Plaintiff's Motion to Amend Complaint, and on October 6,
2017, Plaintiff filed her Amended Complaint. Docket no. 26.
brings causes of action pursuant to Title VII of the Civil
Rights Act of 1964, as amended (42 U.S.C. § 2000e et
seq.); the Age Discrimination in Employment Act
(“ADEA”) (29 U.S.C. § 621 et seq.);
42 U.S.C. §§ 1981, 1981a, and 1983; and the Texas
Labor Code, Chapter 21 and § 52.031. Id. at 1.
is a former employee of the City of Converse. She previously
filed a charge of discrimination against the City of Converse
Police Department (“CCPD”) on May 16, 2016, with
the Equal Employment Opportunity Commission
(“EEOC”). Id. at 2. Plaintiff alleged
discrimination based on age, race, and disability.
Id. She also complained of sexual harassment by City
Manager Lanny Lambert. Id. Plaintiff further alleged
she experienced retaliation from Lambert, newly hired Police
Chief Fidel Villegas, and Mayor Al Suarez in the form of a
hostile work environment that allegedly resulted in her
resignation from the City of Converse. Id. On
February 9, 2017, the EEOC issued a Notice of Right to Sue.
Id. Plaintiff then brought this suit on May 8, 2017.
states she was employed by the City of Converse at the
city's police department in 2007 as the first ever
Communications Supervisor. Id. at 3. She resigned
from that position with twenty-eight years of Emergency
Services experience and twenty-five years of law enforcement
experience. Id. Plaintiff alleges she experienced no
employment problems with any prior employers or the City of
Converse, until she complained about sexual harassment
against Defendant Lambert. Id.
alleges Lambert subjected her to sexual harassment in the
form of sex-based and inappropriate texts, jokes, and
pictures sent to her cell phone, usually during late evening
hours. Id. Plaintiff informed Rick Jamison, Police
Chief at that time, about the communication and that she
wanted it to stop, and she followed the City's policy to
report the conduct, specifically reporting it to Human
Resources. Id. Plaintiff alleges that a few days
later, Lambert stated in a Directors meeting that all
Directors needed to be careful about texting subordinates,
but that he later told Plaintiff, “three other women in
prior cities complained on me and all you get are warnings
and they don't do much more.” Id.
to Plaintiff, Lambert ceased sending messages and texts, but
she began to experience retaliation for reporting the sexual
harassment. Id. at 4. Plaintiff alleges that a
female, Hispanic employee was assigned to the police
department in August 2015 after being transferred between
City departments “because of behavior and performance
issues.” Id. Plaintiff states this employee
“had a prior history of also complaining about”
Plaintiff, and the employee became an employee in
Plaintiff's department after Plaintiff complained about
Lambert's sexual harassment. Id.
alleges that in October 2015, she was re-investigated for a
2012 work incident that the City previously investigated.
Id. Plaintiff alleges this investigation came about
as a result of the newly assigned employee in Plaintiff's
department complaining about Plaintiff. Id.
Plaintiff alleges the employee was upset “about being
removed from a warrant job back to patrol shift work.”
Id. Plaintiff states that Lambert hired the same law
firm used in 2012 to investigate the complaint against her to
re-investigate the same issue, as he was “determined to
inflict punishment” on Plaintiff. Id.
requested administrative leave during the investigation, but
leave was denied three times. Id. Plaintiff alleges
she was forced to work with the employee who complained
against her. Id. Plaintiff states no violation was
found against her, “except that [Plaintiff] cussed
during the investigation.” Id. Plaintiff was
allegedly asked by the investigator what language was used in
2012, and she repeated it and was told she was unprofessional
for cussing. Id.
December 2015, Plaintiff was cleared of any new alleged
violations, but she alleges Lambert still wanted to punish
her. Id. Plaintiff alleges the circumstances between
2012 and 2015 only changed because Plaintiff reported
Lambert's alleged sexual harassment. Id. at 5.
thereafter, Plaintiff alleges former Chief Jamison retired
because he was under duress and pressure from Lambert to
suspend Plaintiff for one to two days without pay based on
the re-investigation of Plaintiff's 2012 actions brought
forward by the department's new employee. Id.
After Jamison's departure, Plaintiff received a written
reprimand. Id. Plaintiff states that at the meeting
regarding the discipline, Lambert stated, “I got out of
the investigation what I wanted.” Id.
point during September-October 2015, Plaintiff alleges
Lambert asked her, “You ready to fight for your
job?” Id. Plaintiff alleges Lambert escalated
efforts to force her out of her job following Jamison's
resignation. Id. Plaintiff alleges the City of
Converse contacted outside organizations to outsource
Plaintiff's job. Id. at 6. The organizations
were allegedly told to not inform Plaintiff, but she learned
of these facts through friends in law enforcement.
Id. Plaintiff states this information influenced her
decision to resign. Id. Plaintiff alleges that in
2016, many department employees over the age of forty
retired, including Plaintiff. Id. at 6.
February 2016, Plaintiff alleges the interim police
chief/assistant city manager changed the dispatch schedule
without notice to Plaintiff without properly notifying
supervisors of the change. Id. Plaintiff was
allegedly informed of the change on February 28, 2016, by one
of the dispatchers, not by the interim chief. Id.
department meeting on March 28, 2016, a rumor about closing
the dispatch department was allegedly raised, and new Police
Chief Fidel Villegas confirmed it was being considered.
Id. Plaintiff was out of town when the meeting took
place. Id. Plaintiff states that she received
“four telephone calls that evening from dispatch
personnel asking if they needed to start looking for new
jobs” and that “all this information influenced
her ultimate decision to resign.” Id.
Plaintiff alleges that after her resignation, the City ceased
in its attempt to outsource the 911 Operations Center.
April 2016, Chief Villegas, hired by Lambert, said that
Plaintiff's schedule would change to midnights.
Id. at 7. Plaintiff alleges in her first meeting
with Villegas, he “belittled and yelled at her with the
office door open and other employees around, humiliating
[her].” Id. Plaintiff alleges Lambert provided
Villegas with information to harass, criticize, ridicule, and
humiliate her. Id. Villegas allegedly told Plaintiff
she was “nothing” and “not knowledgeable
enough to teach [certain] classes” and her
“teaching days were over.” Id. Plaintiff
states Villegas called her into his office later that same
day and harassed her for another hour about her work.
Id. Given that Villegas was “new to the
department” and “this was his first day meeting
[her], ” Plaintiff questions how Villegas would know
aspects about her work or the department's turnover rate,
unless Lambert “hired him and provided his biased,
incorrect viewpoint” about Plaintiff. Id.
states that a few days after her April 6, 2016, meeting with
Villegas, the Assistant City Manager met with Command Staff,
and Plaintiff and other staff members gave reasons not to
close Dispatch. Id. Plaintiff alleges the Assistant
City Manager “looked directly at [Plaintiff] and stated
they needed the money from her communication division to
cover some of the positions in the Police Department that had
been shorted over the years.” Id. The
Assistant City Manager allegedly told everyone present what
Plaintiff was being paid and what one telecommunicator cost
the city each year. Id. at 7-8. The Assistant City
Manager allegedly said that with just Plaintiff's salary,
“the City could fund two more police officers.”
Id. at 8.
enduring alleged retaliatory actions and other “illegal
actions by all Defendants, ” Plaintiff turned in her
written notice dated April 13, 2016, and resigned.
Id. Plaintiff alleges the City of Converse's
attempts to outsource her position ceased following her
resignation. Id. at 9. Plaintiff states she planned
to continue working for the City for at least two more years,
but she “could not ignore the discrimination and
retaliation, which Villegas obviously planned to continue
against her.” Id. Plaintiff alleges she was
forced to forego obtaining her full retirement benefits
because she could no longer tolerate the acts against her.
alleges Mayor Suarez influenced the decisions of Lambert, who
tasked Villegas to “make life miserable” for
Plaintiff. Id. Plaintiff states that Suarez
commented that more diversity was needed in the City.
Id. Plaintiff alleges older workers and workers
“in other protected classes” were replaced by
those “outside of their protected class.”
alleges comments were made during insurance meetings that
“older people were costing the city and needed to
go.” Id. Plaintiff alleges that after her
forced resignation, her duties were assigned to a younger
male with no prior dispatch knowledge or experience.
Id. She further alleges that “[o]ther former
White employees were replaced at the city by Hispanic or
African American employees.” Id. Plaintiff
states that the “most recent employee performing as the
Communication Supervisor is a younger, less experienced
female whom the City is paying less than the City paid
states she has been unable to secure full-time employment
since she was allegedly forced to leave her position.
Id. at 10. She alleges Defendants are
“blacklisting” her because they are
“vengeful and motivated by discrimination and
retaliation against her since she caused problems for
now brings claims for discriminatory retaliation, retaliatory
and discriminatory hostile work environment, race
discrimination, age discrimination, and blacklisting.
Id. at 10-19. On October 20, 2017, Defendants filed
a Motion to Dismiss for failure to state a claim. Docket no.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim for relief must contain: (1) “a short
and plain statement of the grounds for the court's
jurisdiction”; (2) “a short and plain statement
of the claim showing that the pleader is entitled to the
relief”; and (3) “a demand for the relief
sought.” Fed.R.Civ.P. 8(a). In considering a motion to
dismiss under Rule 12(b)(6), all factual allegations from the
complaint should be taken as true, and the facts are to be
construed favorably to the plaintiff. Fernandez-Montez v.
Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993).
To survive a 12(b)(6) motion, a complaint must contain
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555.
Plaintiff's Claims Against the City of Converse
brings claims for discriminatory retaliation, retaliatory and
discriminatory hostile work environment, race discrimination,
age discrimination, and blacklisting against the City of
Converse. Defendants argue that ...