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Niemietz v. City of Converse

United States District Court, W.D. Texas, San Antonio Division

December 7, 2017




         On this 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.


         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         According 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.

         Plaintiff 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.

         Plaintiff 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.

         In 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.

         Shortly 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.

         At some 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.

         In 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.

         In a 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. Id.

         In 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.

         Plaintiff 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.

         After 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. Id.

         Plaintiff 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.” Id.

         Plaintiff 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 [Plaintiff].” Id.

         Plaintiff 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 them.” Id.

         Plaintiff 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. 27.


         I. Legal Standard

         “To 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 ...

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