United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND RECOMMENDATION
CHRISTINA A. BRYAN, UNITED STATES MAGISTRATE JUDGE.
case is before the court on Defendants' third motion to
dismiss (Dkt. 27) and motion for summary judgment (Dkt.
32). The district court has referred this
matter to this magistrate judge for report and recommendation
(Dkt. 26). The court recommends that Defendants' motion
for summary judgment be granted.
Dr. Jianjun Du (Du) is an associate professor at the
University of Houston at Victoria in the School of Business
Administration. He was hired in 2001. Du filed a charge of
discrimination with the EEOC on November 5, 2012. Du received
a Right to Sue Notice from the EEOC, and filed this action in
October 2016. The only claims remaining in this case are
Plaintiffs Title VII discrimination and retaliation
claims. Defendants move to dismiss both
claims, or alternatively for summary judgment.
Motion to Dismiss
Legal Standards for dismissal under Rule 12(b)(1) and
defendant may challenge a court's jurisdiction over a
claim through a motion under Rule 12(b)(1) of the Federal
Rules of Civil Procedure. A motion under 12(b)(1) should be
granted only if it appears certain that the plaintiff cannot
prove a plausible set of facts that establish subject-matter
jurisdiction. Lane v. Halliburton, 529 F.3d 548, 557
(5th Cir. 2008). "[U]nder Rule 12(b)(1), the
court may find a plausible set of facts supporting subject
matter jurisdiction by considering any of the following:
'the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.'"
reviewing a pleading under Rule 12(b)(6), the court
"accepts 'all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff.'"
Alexander v. AmeriPro Funding, Inc., 848 F.3d 698,
701 (5th Cir. 2017) (citing Martin K. Eby Constr. Co. v.
Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th
Cir.2004)). However, only facts are entitled to an assumption
of truth; legal conclusions unsupported by factual
allegations do not suffice. Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009). To survive a Rule 12(b)(6) motion to
dismiss, the plaintiff must plead "enough facts to state
a claim to relief that is plausible on its face."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at
678; Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009).
Exhaustion of remedies
Defendants filed their motion under Rule 12(b)(1), they
recognize exhaustion is not a matter of jurisdiction:
"While the procedural exhaustion requirements are not
jurisdictional in nature, a claimant must exhaust
administrative remedies before filing a Title VII suit in
federal court. Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 398 (1982)." Dkt. 27 at 8. The Fifth
Circuit has characterized the exhaustion requirement as a
"precondition to filing suit, " as opposed to a
jurisdictional prerequisite. See Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 460 (5th Cir.
1970) ("the filing of a charge of discrimination is a
condition precedent to the bringing of a civil action under
Title VII"); Taylor v. Books A Million, Inc.,
296 F.3d 376, 379 (5th Cir. 2002) ("Although filing an
EEOC charge is not a jurisdictional prerequisite, it is a
precondition to filing suit in district court.").
Because Defendants' motion to dismiss does not implicate
the court's jurisdiction, the court will consider the
motion under Rule 12(b)(6).
original complaint in this case, Du alleges that he began
experiencing discrimination based on his national origin when
Dr. Farhang Niroomand became dean of the SBA in 2009.
Specifically, he alleges: he was denied funds for a
conference in 2013; professors from America and Middle
Eastern countries were promoted to full professor over him;
he and faculty from other East Asian countries had points
deducted from their annual evaluations; he did not receive as
many pay raises as non-Asians due to low annual evaluations;
and since complaining about discrimination, his treatment by
Niroomand has been even worse, especially in regard to
evaluations. Dkt. 1 at ¶¶ 16-20, 22-23.
2012 charge of discrimination asserts the follows
I. On or around November 23, 2011, my Dean and Associate Dean
began subjecting me to harassment, intimidation, a hostile
work environment, and different terms and conditions of
employment. Respondent is a university. I work as Associate
II. As Senator of the Faculty Senate, I expressed my opinion
regarding a proposed statement regarding the School of
Business Administration culture by e-mailing Jeffrey
Blodgett, Associate Dean. Shortly afterwards, I was shocked
when Farhand Niroomand, Dean, embarrassed and intimidated me
in front of the other 3 faculty senators. He told me that he
would terminate me over an unrelated issue during our
conversation about the proposed statement. He did not
intimidate the other 3 senators, Ronald Salazar, Joseph
Ben-Ur, and Uche Nwabueze, all non-Chinese. They were allowed
to express their opinions freely whereas I was intimidated.
In March 2012, the deans deducted points from my evaluation,
which had never happened to me before in my employment. When
I told Blodgett that I would file a grievance, he intimidated
me by telling me that he would ruin my career based on a
paper. Blodgett also intimidated me by falsely accusing me of
unethical behavior. I believe that Niroomand and Blodgett
treat senior Chinese members more harshly, and retaliate
against them for issues that would not be a problem for other
faculty members. They also put in younger faculty members on
the appointed faculty committees. The deans send out e-mails
to their trusted faculty members to direct votes for their
favorite nominees and against the ones they dislike, which in
violation of university policy. This lack of transparency is
an abuse of power and consistently discriminates against
senior Chinese faculty members.
III. I believe that I have been discriminated against because
of my national origin, Chinese, and retaliated against, in
violation of Title VII of the Civil Rights Act of 194, as
amended. I also believe that I have been discriminated
against because of my age, and retaliated against, in
violation of the Age Discrimination in Employment Act of
1967, as amended. I further believe that Chinese faculty
members over age 50, as a class, have been discriminated
against because of their national origin and age, in
violation of the above statutes.
Dkt. 1-1 at 2.
court's review is limited to those claims that
"could reasonably be expected to grow out of the initial
charges of discrimination." Pacheco v. Mineta,
448 F.3d 783, 789 (5th Cir. 2006). While Du's
EEOC charge does not use the precise words "failure to
promote" or "failure to give pay increases, "
he does reference low evaluations and "different terms
and conditions of employment" in general. In order to
further the purpose of Title VII, the scope of the EEOC
charge should be liberally construed. Fellows v.
Universal Restaurants, Inc., 701 F.2d 447, 451
(5th Cir. 1983) (a Title VII cause of action may
be based upon "any kind of discrimination like or
related to the charge's allegations, limited only by the
scope of the EEOC investigation that could reasonably be
expected to grow out of the initial charges of
court concludes that the language of the charge is broad
enough to encompass Du's claims in the original complaint
that Defendants' failure to promote him or give him pay
increases is due to national origin
discrimination. As to retaliation, Gupta v. East
Texas State Univ., 654 F.2d 411, 414 (5th
Cir. 1981), holds that exhaustion is not required for claims
of retaliation that naturally arise after the filing of an
EEOC charge. For these reasons, the court
recommends the Defendants' motion to dismiss Du's
claims for lack of exhaustion be denied.
Failure to plead an adverse employment action
also moved to dismiss for failure to state a claim, arguing
that Du's pleading does not identify any promotion for
which he applied, and his other allegations do not set forth
any matters that constitute adverse employment actions. A
claim for Title VII discrimination must include an allegation
that the plaintiff was subject to an adverse employment
action, which includes only "ultimate employment
decisions such as hiring, granting leave, discharging,
promoting, or compensating." McCoy v. City of
Shreveport, 492 F.3d. 551, 559 (5th Cir.
2007) (citing Green v. Adm'rs of Tulane Educ.
Fund, 284 F.3d 642, 657 (5th Cir. 2002)). The
definition of an adverse employment action is broader in the
retaliation context, and includes an action that "might
well have dissuaded a reasonable worker from making or
supporting a charge of discrimination." Id.
(citing Burlington N. & Santa Fe Ry, 548 U.S.
53, 68 (2006)).
court construes Du's complaint to assert a claim for
discrimination based on the adverse employment actions of
Defendants' failure to promote him and failure to give
him pay increases, and for retaliation based on these
actions, as well as on Niroomand's treatment of him.
See Dkt. 1 at ¶¶ 17-23. While the
complaint is not long on factual allegations, the court
concludes that it is sufficient to state a claim for relief
that is "plausible on its face." Iqbal,
556 U.S. at 678. The court recommends that Defendants'
motion to dismiss Du's claims for failure to state a
claim be denied.
Motion for Summary Judgment
Rule 56 standard of review
judgment is appropriate if no genuine issues of material fact
exist, and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c). The party moving for
summary judgment has the initial burden to prove there are no
genuine issues of material fact for trial. Provident Life
& Accident Ins. Co. v. Goel,274 F.3d 984, 991 (5th
Cir. 2001). Dispute about a material fact is
"genuine" if the evidence could lead a reasonable
jury to find for the nonmoving party. In re
Segerstrom,247 F.3d 218, 223 (5th Cir. 2001). "An
issue is material if its resolution could ...