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Pfau v. Mnuchin

United States District Court, W.D. Texas, Austin Division

May 15, 2019

MARIE PFAU Plaintiff,
STEVEN T. MNUCHIN, Secretary of the Treasury, in his official capacity, Defendant.



         Before the Court is a motion to dismiss by Steven T. Mnuchin, in his official capacity as Secretary of the Treasury (“Defendant”), (Dkt. 16), and responsive briefing, (Dkts. 17, 18). Having considered the parties' submissions, the record, and the applicable law, the Court issues the following order.

         I. BACKGROUND

         This case is about sex and age discrimination in employment. Plaintiff Marie Pfau (“Pfau”) worked as a seasonal clerk for the Internal Revenue Service (“IRS”) for nearly three months, from February 22, 2017, until May 16, 2017. (First Am. Compl., Dkt. 15, ¶¶ 14, 49). During this time, she was a 71-years-old female. (Id. ¶ 15). Pfau alleges that a co-worker, Mario Drumgoole, began to harass her during the first week of March 2017 after she completed her initial training. (Id. ¶ 21). Pfau states that Drumgoole was a “team coordinator” but claimed he was a “departmental authority figure.” (Id. ¶ 19). According to Pfau, “Drumgoole insisted on supervising employees . . . and claimed he had the power to dismiss” them. (Id. ¶ 20). Although he was not Pfau's direct supervisor, he “attempted to exercise supervisory power” over her: he would “repeatedly ask [Pfau] if she had enough work to do, ” “examine and criticize her completed assignments, ” and order her “to stop working on assignments.” (Id. ¶¶ 16-17, 22). When he did so, he “would stand so close to” Pfau that he would “touch [her] at the elbow and shoulder.” (Id. ¶ 22). Pfau claims that all of Drumgoole's supervisory actions were outside the scope of his authority and duties. (Id.). She also claims that he only took these “supervisory” actions against female employees. (Id. ¶¶ 23, 24).

         Additionally, Pfau describes five specific actions she alleges demonstrate Drumgoole's harassment of her. She alleges that (1) he “interrupted” her conversation with another employee; (2) “ranted” to another employee about “old people lying up in bed, ” “having sexual intercourse to have children, ” and “receiv[ing] food stamps and Medicaid”; (3) instructed her “in a demanding tone” to get back to work while she was on her lunch break; (4) told her “to quit her job” while “clench[ing] his fists”; and (5) walked next to her down a row of cubicles while “repeatedly punch[ing] one fist into [the] other hand, ” “grunting, ” and “ma[king] eye contact” with her. (Id. ¶¶ 25, 30, 33, 34, 44). Pfau claims that she interpreted this last action as a “direct threat of violence” because she had recently complained about Drumgoole's behavior, and she “feared that Drumgoole would physically assault her.” (Id. ¶ 45).

         Throughout this time, Pfau alleges that she twice applied for other positions in the IRS. (Id. ¶¶ 14, 28, 41). She claims that she applied for the second position in order to escape Drumgoole's harassment, though she does not make a similar allegation with respect to her first job application. (See id.). Pfau was not selected to fill either position, however, and in both cases, she alleges that the position selection criteria were “manipulated” “specifically to exclude [her] from consideration for [the] position[s].” (Id. ¶¶ 32, 48).

         Pfau's direct supervisor was Josephine Eller (“Eller”). (Id. ¶ 16). Pfau alleges that she reported Drumgoole's conduct to Eller on May 1, 2017. (Id. ¶ 35). She claims that Eller told her that Drumgoole was “more important” than she was, and that “nothing could be done” about his conduct despite the fact that he had been subject to prior disciplinary actions. (Id. ¶ 36). Nevertheless, Eller allegedly met with Drumgoole on May 3 regarding Pfau's complaints, and on May 15, she issued a “managerial directive to Drumgoole instructing him to have no further communication with [Pfau] unless [he] ‘had a business-related reason to do so.'” (Id. ¶¶ 38, 47). Pfau alleges that Drumgoole refused to sign the directive. (Id. ¶ 47). Two days later, she resigned. (Id. ¶ 49).

         Based on her allegations, Pfau asserts four causes of action against Defendant: (1) sex discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. (“Title VII”); (2) age discrimination under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (“ADEA”); (3) retaliation under Title VII; and (4) retaliation under the ADEA. (Id. at 9-11). Defendant filed a motion to dismiss each of these claims under Federal Rule of Civil Procedure 12(b)(6). (Mot., Dkt. 16).


         Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a 12(b)(6) motion, a “court accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,' but must provide the plaintiff's grounds for entitlement to relief-including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.'” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “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 Twombly, 550 U.S. at 570).

         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.” Id. “The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments, “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citations and internal quotation marks omitted). A court may also consider documents that a defendant attaches to a motion to dismiss “if they are referred to in the plaintiff's complaint and are central to her claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). But because the court reviews only the well-pleaded facts in the complaint, it may not consider new factual allegations made outside the complaint. Dorsey, 540 F.3d at 338. “[A] motion to dismiss under 12(b)(6) ‘is viewed with disfavor and is rarely granted.'” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).


         A. Sex Discrimination

         “[A] plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). To establish a hostile work environment claim under Title VII, the plaintiff must prove that she: (1) belongs to a protected group; (2) was subjected to unwelcome harassment; (3) the harassment complained of was based on her protected group status; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial ...

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