United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN, UNITED STATES MAGISTRATE JUDGE
LaTonya Rachelle Bennings filed a pro se complaint
against her former employer, Defendant University of Texas
Southwestern Medical Center (“UT Southwestern”),
see Dkt. Nos. 3 & 8, which, after screening and
her filing an amended complaint, was ordered served,
see Dkt. Nos. 7, 9, & 10.
Southwestern moved to dismiss Bennings's complaint under
Federal Rule of Civil Procedure 12(b)(6), see Dkt.
Nos. 15 & 16. And United States District Judge Sam A.
Lindsay referred the motion to the undersigned United States
magistrate judge under 28 U.S.C. § 636(b) for findings
and recommendations. See Dkt. No. 17. Bennings filed
a court-allowed out-of-time response. See Dkt. Nos.
18 & 19. And UT Southwestern filed a reply brief.
See Dkt. No. 20.
undersigned enters these findings of fact, conclusions of
law, and recommendation that the Court should grant the
motion to dismiss and dismiss Bennings's complaint as
amended without prejudice to her filing a second amended
construing Bennings's complaint as amended, see
Dkt. Nos. 3 & 8, she alleges retaliation, sex-based
hostile work environment, and discrimination based on race.
alleges that she contacted a human resources representative
on or about December 8, 2017 to complain that she was
“sexually assaulted” by a co-worker and that,
separately, her supervisor subjected her to “racist
treatment.” Dkt. No. 3 at 3. The sexual assault alleged
consisted of the co-worker rubbing her leg on August 9, 2016;
“grabb[ing] and squeez[ing her] behind” on August
30, 2016; and massaging her shoulders and grabbing her breast
on September 26, 2016. Id. at 4.
first incident alleged against the supervisor that could
plausibly implicate racial discrimination occurred on October
12, 2015, when he asked another of Bennings's co-workers,
in Bennings's presence, “what is the difference
from a dark skin, light skin and brown skin black
person?” and, after some discussion, the following
Then he says I understand why you don't like to get in
the pool, because your hair will get as big as Michael
Jackson afro but why are you worried about getting darker
from the pool? What is the big deal Josh says? Then Jaclyn
says we just don't want to be darker. Joshua sniggle a
little then Joshua says, I use to be a waiter and every time
I served a black family they would ask for a flavored drink
like strawberry, or a grape drink. Why not Pepsi, Coke or
Sprite? Then he said why are black people so scared to tell
their family members how much money they spend on their dogs?
Joshua proceeds to say your pets are like family members so
why is it a big deal?
Id. at 6.
next alleged incident involving the supervisor plausibly
implicating race, occurring on June 17, 2016, was his asking
Bennings her thoughts on a line from an O.J. Simpson
Just as I was giving Eric the information on the doctor.
Joshua starts talking about how he was watching OJ
Simpson's documentary the night before. I didn't
respond and Eric didn't either but then Joshua says OJ
asked one of his friends “why are those N's with er
on the end not N's with an a on the end in my
backyard?[”] I tried to talk over him by saying well I
hope you guys have a good weekend. But then Joshua turns and
ask me what do I think about that? I said to him I don't
think about it at all because I don't care and don't
think about OJ Simpson point blank!! Then I walked out!
Id. at 6-7.
on June 30, 2016, during a meeting regarding Bennings's
evaluation, the supervisor related to Bennings that an
employee who used to work for him “was a black lady
that wore shoes and jewelry that matched her wardrobe and all
of that, (no importance at all) he told me that Wanda was
still working for UT but works in a different department and
maybe I should call her to see if she knows about any
openings since she didn't fit there either.”
Id. at 7. Bennings also alleges that, after that
meeting, the supervisor referred to her as “home
girl/sister girl repeatedly.” Id.
on September 17, 2017, the supervisor asked Bennings who her
favorite rapper was and then insisted that she sing a Tupac
song with him. See Id. at 7-8.
Bennings's December 8, 2017 meeting with HR, UT
Southwestern emailed her, on January 12, 2018, the results of
its internal investigation of her equal opportunity complaint
- that it “was able to substantiate sufficient evidence
to indicate that [the co-worker's] behavior rose to the
level of ‘sexual misconduct'” but that it was
“unable to determine [that the supervisor's]
behavior rose to the level of discrimination or harassment as
defined within [its] Institutional policies.”
Id. at 10.
filed two complaints with the EEOC. The first asserts race
and sex discrimination and was filed on December 22, 2017.
See Id. at 11-12. The second, complaining of
retaliation, but further repeating her allegations that she
was sexually assaulted by a co-worker and subjected to racist
treatment by her supervisor, alleges harm from December 8,
2017 to April 11, 2018 and was filed on September 13, 2018.
See Id. at 3.