United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE.
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.
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. ¶¶
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.
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).
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).
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.
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).
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)).
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 ...